Donna K. Jennings, APRN, DAB CR5340 (2019)

DECISION

Petitioner, Donna K. Jennings, APRN, challenges the effective date of her Medicare enrollment application dated October 21, 2016, following a period of deactivation resulting from a failure to revalidate. As further explained herein, I find the Centers for Medicare & Medicaid Services (CMS) properly established October 21, 2016 as the effective date of Petitioner's enrollment, as it is the filing date of her most recent successful application.

I. Background

On March 17, 2016, CMS contractor Noridian Administrative Services (Noridian) advised Petitioner that she was obligated to revalidate her Medicare enrollment record by May 31, 2016. CMS Exhibit (Ex.) 1. Petitioner subsequently submitted an electronic revalidation application via the Provider Enrollment, Chain and Ownership System (PECOS). CMS Ex. 2. Petitioner listed herself as the contact person, and provided

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asmtih@jenningsnet.com as her email address. Id. at 3. A submission confirmation was sent to this email address. CMS Ex. 3.

On June 16, 2016, Noridian requested that Petitioner provide additional information to complete her revalidation application. CMS Ex. 5. Noridian informed Petitioner that if she did not submit the requested information within 30 days her application could be rejected. Id. By letter dated July 28, 2016, Noridian advised Petitioner that her Medicare billing privileges were deactivated as of July 16, 2016 because she did not revalidate her enrollment record or respond to requests for more information. CMS Ex. 6.

On August 31, 2016, Petitioner submitted another revalidation application via PECOS. CMS Ex. 7. On September 16, 2016, Noridian again requested additional information from Petitioner, and advised her that her application could again be rejected if she failed to respond by September 30, 2016. CMS Ex. 8. Petitioner responded to Noridian's request on September 19, 2016. CMS Ex. 9. However, Noridian rejected Petitioner's application because she failed to submit all the information requested. CMS Ex. 10. Noridian advised Petitioner that she could submit a new application to revalidate her Medicare enrollment. Id. On October 21, 2016, Petitioner submitted a new revalidation application. CMS Ex. 11. Noridian approved this application and reactivated Petitioner's billing privileges effective October 21, 2016. CMS Ex. 12. This resulted in a lapse of Petitioner's billing privileges from June 24, 2016 through October 20, 2016.1 Id.

Petitioner requested reconsideration of the effective date determination, arguing she did not receive notifications for additional information because Noridian sent notifications to the wrong email address. CMS Ex. 13. In its January 26, 2017 reconsidered determination, Noridian modified the date of deactivation of Petitioner's billing privileges from to July 16, 2016 to July 28, 2016, but upheld the determination of October 21, 2016 as the effective date of her reactivated billing privileges. CMS Ex. 14.

Petitioner timely requested a hearing and Administrative Law Judge Scott Anderson was designated to hear and decide this case. On April 6, 2017, he issued an Acknowledgment and Pre-Hearing Order (Order) which I adopt in its entirety. On August 25, 2017, this case was transferred to me.

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II. Admission of Exhibits and Decision on the Record

CMS filed a motion for summary judgment and brief (CMS Br.), as well as 14 proposed exhibits (CMS Exs. 1-14). Petitioner filed a brief (P. Br.) opposing summary judgment and eight proposed exhibits (P. Exs. 1-8). Neither party has objected to any exhibits. Therefore, I admit CMS Exs. 1-14 and P. Exs. 1-8 into the record.

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).

III. Issue

Whether CMS had a legitimate basis for establishing October 21, 2016, as the effective date of Petitioner's reactivated billing privileges.

IV. Jurisdiction

I have jurisdiction to decide this case. 42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2).

V. Findings of Fact, Conclusions of Law, and Analysis3

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

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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 the supplier 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).

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 "furnish complete and accurate information and all supporting documentation within 90 calendar days of receipt of notification from CMS to submit an enrollment application and supporting documentation, or resubmit and certify to the accuracy of its enrollment information." 42 C.F.R. § 424.540(a)(3). 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 (Board) 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

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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 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).

B. Analysis

1. Petitioner has no right to appeal, and I have no right to review, Petitioner's deactivation.

Noridian advised Petitioner on July 28, 2016 that her Medicare billing privileges were deactivated as of July 16, 2016 because she did not revalidate her enrollment record or respond to requests for more information. CMS Ex. 6.

Petitioner argues that she did not receive email correspondence from Noridian regarding her revalidation because Noridian sent the correspondence to the wrong email address. P. Br. at 2. Petitioner also argues CMS did not notify her to stop seeing Medicare patients or provide guidance on how to handle current patients during the revalidation process. Id. at 3.

I fully credit Petitioner's assertion that her failure to respond to Noridian during the revalidation process was inadvertent. Unfortunately, I have no authority to review CMS's decision to deactivate a supplier. Urology Grp., DAB No. 2860 at 6 ("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, however, it appears Petitioner played a role in the events leading to her deactivation. She provided Noridian with an incorrect email address, which led to the rejection of her May 4, 2016 application. CMS Ex. 2 at 3. She concedes she failed to submit requested documents with her August 31, 2016 application, P. Br. at 2, even though Noridian had warned Petitioner that if she did not provide the requested documents, her application would be rejected. CMS Exs. 5, 8. Noridian also advised Petitioner of the consequences of deactivation, advising that she would not be

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paid for services she rendered during the deactivation period. CMS Ex. 1. Thus, I cannot say the circumstances resulting in Petitioner's deactivation were unjust, though in any case, I must accept the fact of her deactivation for purposes of this decision, and cannot overturn it.

2. Petitioner filed a subsequently approved revalidation application on October 21, 2016, and the effective date of her Medicare enrollment can be no earlier than that date.

Petitioner submitted revalidation applications on May 4, 2016, August 31, 2016, and October 21, 2016. CMS Ex. 2; CMS Ex. 7; CMS Ex. 11. Noridian rejected the applications submitted on May 4, 2016, and August 31, 2016, due to untimely responses to requests for additional information.4 CMS Ex. 6 at 1; CMS Ex. 10 at 1. It is beyond dispute that her application submitted on October 21, 2016 was the only application Noridian subsequently approved. Thus, pursuant to 42 C.F.R. § 424.520(d), the date Petitioner filed her subsequently approved enrollment application – October 21, 2016 – is the correct effective date of enrollment. Urology Grp., DAB No. 2860 at 7-9; Goffney, DAB No. 2763 at 7.

3. Petitioner's arguments in equity are not a basis to reverse Noridian's determination of Petitioner's effective date.

While she does not contend there is an earlier application that was subsequently approved, Petitioner complains that "[w]hen the revalidation or credentialing process does not go well there is not a mechanism in place to protect suppliers and ensure they are paid for the services they actually provide, or to protect the patients being involuntarily discharged by the suppliers." P. Br. at 1. Whether her observations concerning CMS' policy as to deactivation and reactivation are valid or not, I have no authority to review or invalidate CMS policy or to grant Petitioner any form of equitable relief. See, e.g., US Ultrasound, DAB No. 2302 at 8 (2010) ("Neither 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."); Pepper Hill Nursing & Rehab. Ctr., LLC, DAB No. 2395 at 11 (2011) (holding that the ALJ and Board were not authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements); UpturnCare Co., DAB No. 2632 at 19 (2015) (Board may not overturn denial of provider enrollment in Medicare on equitable grounds). Therefore, the effective date of October 21, 2016 must stand.

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VI. Conclusion

For the foregoing reasons, CMS properly determined Petitioner's effective date of re‑enrollment to be October 21, 2016, the date she filed an enrollment application that was subsequently approved.

1. Though the December 2, 2016 notice indicated that the gap began on June 24, 2016, the July 28, 2016 notice of deactivation indicated that Petitioner's billing privileges were deactivated effective July 16, 2016. CMS Ex. 12 at 1; CMS Ex. 6. CMS has not explained the discrepancy, but Noridian ultimately modified the date of deactivation to July 28, 2016. See CMS Ex. 14.
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2. As such, CMS's motion for summary judgment is denied as moot.
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3. My findings of fact and conclusions of law are set forth in italics and bold font.
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4. I am not permitted to review the validity of Noridian's decision to reject Petitioner's earlier applications, as rejected enrollment applications are not afforded appeal rights under the governing regulations. 42 C.F.R. § 424.525(d).
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