John T. Moor, M.D., DAB CR5362 (2019)

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DECISION

The Centers for Medicare & Medicaid Services (CMS), through a contractor, determined that the effective date for reactivation of the Medicare billing privileges for John T. Moor M.D. (Dr. Moor or Petitioner) was June 1, 2017. Petitioner requested a hearing to dispute this effective date. Because the CMS contractor approved Petitioner's revalidation enrollment application that it received on June 1, 2017, the CMS contractor correctly determined that the effective date for the reactivation of Petitioner's billing privileges was June 1, 2017. Therefore, I affirm CMS's determination.

I. Background and Procedural History

Petitioner was enrolled in Medicare as a supplier prior to 2016. CMS Exhibit (Ex.) 6. On March 1, 2017, Petitioner filed a CMS-855I enrollment application through the

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Provider Enrollment, Chain, and Ownership System (PECOS) to revalidate his Medicare billing privileges. CMS Ex. 4. In a May 26, 2017 notice, the CMS contractor informed Dr. Moor that his billing privileges were deactivated, effective May 25, 2017, because Petitioner's application was incomplete and he did not respond to the contractor's requests for more information. CMS Ex. 3 at 1. Subsequently, on June 1, 2017, Petitioner submitted a second, complete CMS-855I enrollment application through PECOS. CMS Ex. 6.

In a June 23, 2017 initial determination, the CMS contractor informed Petitioner that his second CMS-855I enrollment application had been approved and that his effective date was November 1, 2001. CMS Ex. 1. On October 2, 2017, Dr. Moor timely requested reconsideration of the initial determination because Dr. Moor's Medicare billing privileges were "deactivated from dates of service May 25, 2017 through June 1, 2017 in error." CMS Ex. 7 at 1. The reconsideration request referenced the November 1, 2001 effective date in the initial determination and that the CMS contractor assured Petitioner, during a previous phone call, that there would not be a lapse in his Medicare enrollment. CMS Ex. 7 at 1.

On October 17, 2017, the CMS contractor issued a partially favorable reconsidered determination. CMS Ex. 2. The reconsidered determination confirmed that, despite the initial determination, the contractor did believe that there was a gap in billing privileges from May 25, 2017 through June 1, 2017. However, the reconsidered determination reduced the gap by one day, making it from May 25, 2017 through May 31, 2017. CMS Ex. 2 at 2.

Petitioner timely requested a hearing before an administrative law judge (ALJ) to dispute the reconsidered determination. The case was originally assigned to Judge Leslie Weyn for hearing and decision. On November 3, 2017, Judge Weyn issued an Acknowledgment and Pre‑hearing Order (Pre-Hearing Order) which established a submission schedule for pre‑hearing exchanges. In response to Judge Weyn's Order, on December 7, 2017, CMS timely filed a motion for summary judgment with a brief in support of the motion (CMS Br.) and eight exhibits. On January 5, 2018, Petitioner timely submitted documents, which I mark as Petitioner (P.) Ex. 1.

On November 20, 2018, the case was transferred to me.

II. Decision on the Written Record

I admit all of the proposed exhibits into the record because neither party objected to any of them. Pre‑Hearing Order ¶ 7; Civil Remedies Division Procedures (CRDP) § 14(e).

The Pre-Hearing Order advised the parties to submit written direct testimony for each witness and that an in-person hearing would only be held if a party requested to

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cross‑examine a witness. Pre‑Hearing 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. Pre-Hearing Order ¶¶ 10-11; CRDP § 19(d).

III. Issue

Whether CMS had a legitimate basis to assign June 1, 2017, 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 another 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).

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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, recertify its enrollment information that is on file. 42 C.F.R. § 424.540(b)(1).

1. On June 1, 2017, the CMS contractor received Petitioner's enrollment application (CMS‑855I) for revalidation, which the CMS contractor approved.

Petitioner submitted a CMS‑855I enrollment application to revalidate his enrollment as a supplier in the Medicare program, which CMS received on June 1, 2017. CMS Ex. 6 at 1. The CMS contractor subsequently approved Petitioner's enrollment application. CMS Ex. 1. The CMS contractor thus reactivated his Medicare billing privileges effective June 1, 2017. CMS Ex. 2 at 2.

2. The effective date for Petitioner's Medicare billing privileges is June 1, 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 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.

I have limited jurisdiction in this case. I can only review the effective date provided to Petitioner under § 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 received only one enrollment application that it processed to completion and approved – the CMS-855I enrollment application that CMS received on June 1, 2017. Therefore, June 1, 2017, is the correct effective date.

In his request for hearing, Petitioner asserts that defects in the CMS-855I enrollment application filed on March 1, 2017, were due to an administrative error. Specifically, he

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states that the original revalidation documents listed an incorrect office delegate, resulting in the application being rejected by the CMS contractor. CMS Ex. 8. Petitioner also asserts that Medicare related documents/notices were sent to an incorrect address, which resulted in his deactivation in the first place. See P. Ex. 1.

With respect to Petitioner's arguments related to actions that resulted in his deactivation, I do not have the authority to review whether CMS properly rejected the first CMS-855I enrollment application that Petitioner submitted on March 1, 2017. CMS's rejection of an enrollment application is not subject to administrative review. 42 C.F.R. § 424.525(d). Nor do I 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 request for additional information (i.e., the request for a completed CMS-855I enrollment application) and deactivated his billing privileges as a result of that inaction. CMS Ex. 3. Because I have no jurisdiction to review deactivations, I am precluded from considering whether CMS properly deactivated Petitioner's billing privileges.

Further, to the extent that Petitioner requests that I provide an earlier effective date due to Petitioner's administrative error or a CMS contractor's assurances that there would not be a lapse in billing, I am unable to grant such a request. Hearing Request; CMS Ex. 7. I do not have authority to provide equitable relief based on principles of fairness or equitable estoppel 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. Conclusion

For the foregoing reasons, I affirm CMS's determination that Petitioner's effective date for Medicare billing privileges is June 1, 2017.

1. The Civil Remedies Division docketed this case with the Petitioner as the practice group John T. Moor, M.D., P.A., because the reconsidered determination incorrectly listed the NPI and PTAN for that entity. However, it is clear from the record that the Petitioner in this case is actually John T. Moor, M.D., an individual physician. Therefore, I change the case caption to properly reflect the Petitioner in this case.
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