Deena D. Sandall, OD, DAB CR5371 (2019)

DECISION

The effective date of the reactivation of Petitioner’s billing privileges is March 9, 2017. Petitioner is entitled to a period for retrospective billing beginning 30 days prior to the effective date of reactivation of Petitioner’s billing privileges.

I. Background and Findings of Fact

On August 8, 2017, Petitioner requested administrative law judge (ALJ) review of the June 26, 2017 reconsidered determination of Wisconsin Physicians Service Insurance Corporation (WPS), the Medicare administrative contractor (MAC). The reconsidered determination upheld a March 20, 2017 initial determination by the MAC that the reactivation of Petitioner’s billing privileges was effective on February 11, 2017, a date after the date of the deactivation of Petitioner’s billing privileges on August 8, 2016. Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 11 at 1-4, 10-11. Both

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the reconsidered determination and the initial determination are in error as to the dates. The evidence shows that Petitioner’s billing privileges were actually deactivated on August 9, 2016. CMS Ex. 1 at 174-75. The reconsidered determination shows that on March 9, 2017, the MAC received the CMS-855I and CMS-855R that the MAC processed to approval. CMS Ex. 1 at 3.  CMS policy set forth in the Medicare Program Integrity Manual (MPIM), CMS Pub. 100-08, ch. 15, § 15.27.1.2 (rev. 561, eff. Mar. 18, 2015), provides that the effective date of reactivation is the date the MAC received the reactivation application that the MAC processed to completion. Therefore, the effective date of reactivation in this case is March 9, 2017, the date of receipt of Petitioner’s CMS-855I and CMS-855R; and the gap in billing privileges existed from August 9, 2016 through March 8, 2017. Although remand to CMS and the MAC for correction of the reconsidered determination is possible, it would be a needless act given that the evidence clearly establishes the date of deactivation and the effective date of reactivation. Petitioner complains that the gap in billing privileges from August 9, 2016 through March 8, 2017 (gap period), resulted in Petitioner not being paid for services rendered to Medicare-eligible beneficiaries during the gap period. 

CMS filed a motion for summary judgment (CMS Br.) with CMS Exs. 1 through 21 on September 14, 2017. On September 22, 2017, CMS filed an amended motion for summary judgment, amended exhibit list, and amended CMS Ex. 1, in accordance with my September 18, 2017 Order rejecting CMS Exs. 1 through 21 for failure to conform to the requirements of the Acknowledgment and Prehearing Order (Prehearing Order). On November 3, 2017, Petitioner filed a letter dated November 1, 2017 (DAB E-File #12m) that I treat as Petitioner’s response in opposition to CMS’s motion for summary judgment (P. Br.) with Petitioner’s Exs. 1 through 12. CMS waived filing a reply brief on November 21, 2017. On January 9, 2018, I issued an Order to Respond to Specified Issues. Petitioner waived the right to address the specified issues by not filing a response. On January 29, 2018, CMS filed a response to the specified issues (CMS’s Response to Specified Issues) with an exhibit marked “CMS Response Ex. 1.”2 No objections have been made to my consideration of CMS Ex. 1 and P. Exs. 1 through 12, which are admitted and considered as evidence.  CMS Response Ex. 1 is not admitted because the letters in the exhibit duplicate and are cumulative of CMS Ex. 1 at 174-75 and 178-79.

The material facts are not disputed. On and before August 9, 2016, Petitioner was enrolled in Medicare with billing privileges. CMS’s Response to Specified Issues at 1-2. The MAC deactivated Petitioner’s billing privileges effective August 9, 2016.  CMS Ex. 1 at 174-75. On March 9, 2017, Petitioner submitted a CMS-855I and a CMS‑855R

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that were received by the MAC on March 9, 2017, and those applications were processed to approval by the MAC. Although Petitioner presented evidence of earlier attempts to submit complete applications, there is no genuine dispute that the applications that were actually processed to approval by the MAC were those received on March 9, 2017. CMS Ex. 1 at 3, 10-11, 13-47; P. Exs. 1-12. Pursuant to CMS policy (MPIM § 15.27.1.2), the effective date of reactivation of Petitioner’s Medicare billing privileges was March 9, 2017, the date the MAC received the applications the MAC processed to approval and not February 11, 2017, as stated in the initial determination (CMS Ex. 1 at 10-11). The MAC’s deactivation of Petitioner’s billing privileges effective August 9, 2016, and the reactivation of Petitioner’s billing privileges effective March 9, 2017, caused a gap in Petitioner’s billing privileges from August 9, 2016 through March 8, 2017, during which period Petitioner was unable to obtain reimbursement from Medicare for services she delivered to Medicare-eligible beneficiaries.  Petitioner remained enrolled in Medicare during the gap period. CMS’s Response to Specified Issues at 1-2.

II. Issue, Conclusions of Law, and Analysis

A. Issue

Whether I have jurisdiction to review the reconsidered determination by CMS or a MAC of the effective date of reactivation of Petitioner’s Medicare billing privileges, i.e., the right to file claims with and to receive payment from Medicare; and

The effective date of reactivation.

B. Conclusions of Law and Analysis

My conclusions of law are set forth in bold text followed by my analysis applying law and policy to the undisputed facts.

1. There is authority for ALJ review in this case, but it is limited to the effective date of reactivation of Petitioner’s billing privileges, i.e., the date of reactivation of Petitioner’s right to submit claims to and receive payment from Medicare for care and services delivered to Medicare‑eligible beneficiaries.

2. Petitioner has no right to review of the determination of the MAC or CMS to deactivate Petitioner’s billing privileges.

This case involves a gap in Petitioner’s billing privileges that was created when the MAC deactivated Petitioner’s billing privileges, and then reactivated Petitioner’s billing privileges on a later date. Petitioner’s real grievance is that CMS and the MAC decline to

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pay Petitioner for services rendered to Medicare-eligible beneficiaries during the gap period, even though there is no dispute that Petitioner was enrolled in Medicare during the gap period.

I conclude Petitioner has no right to ALJ review of the MAC determination to deactivate Petitioner’s billing privileges. Petitioner also has no right to ALJ review in this forum of the denial of payment of Petitioner’s claims during the gap period. Petitioner does have a right to ALJ review of the reconsidered determination of the effective date of the reactivation of Petitioner’s billing privileges.

CMS or the MAC may deactivate the billing privileges of a provider or supplier for failure to do any of the following:

1. Submit a claim for 12 consecutive months;

2. Report a change in enrollment information within 90 days of the date of the change, except a change in ownership or control, which must be reported within 30 days; and

3. Give CMS or the MAC complete and accurate information and all supporting documents within 90 calendar days of a request from CMS or the MAC to submit an enrollment application or certify the accuracy of its enrollment information.

42 C.F.R. § 424.540(a).3 A provider or supplier deactivated for failure to submit a claim for 12 consecutive months may reactivate billing privileges by recertifying that all information on file with CMS is correct; providing any missing information; meeting all Medicare enrollment requirements; and being prepared to submit a valid claim.  42 C.F.R. § 424.540(b)(2). When deactivation is based on the failure to timely notify CMS or the MAC of a change of information or to timely respond to a request for information, a provider or supplier must complete and submit a new enrollment application to reactivate its billing privileges, unless CMS or the MAC permits the

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provider or supplier to recertify that its enrollment information on file is correct.  42 C.F.R. § 424.540(b)(1). Deactivation of Medicare billing privileges is an action to protect the provider or supplier from misuse of its billing privileges and to protect the Medicare Trust funds from unnecessary overpayments.  42 C.F.R. § 424.540(c).

There is no right to ALJ review under 42 C.F.R. pt. 498, of a CMS or MAC determination to deactivate a provider’s or supplier’s billing privileges. The relevant regulation concerning appeal rights provides only that the provider or supplier may submit a rebuttal to CMS or the MAC under 42 C.F.R. § 405.374 (opportunity for rebuttal required for suspension of payments, offset, or recoupment). 42 C.F.R. § 424.545(b).

The Secretary of the Department of Health & Human Services (the Secretary) promulgated regulations at 42 C.F.R. §§ 424.545 and 498.5 that specify review and appeal rights in provider and supplier enrollment cases.  The Secretary has not specifically stated that a provider or supplier has a right to ALJ review of CMS or MAC determinations related to the reactivation of billing privileges. 42 C.F.R. §§ 424.70-.90, 424.545, 498.3(b), 498.5. However, 42 C.F.R. § 498.3(b)(15) provides that “[t]he effective date of a Medicare provider agreement or supplier approval” is an initial determination subject to review by an ALJ. The Board has given an expansive interpretation to 42 C.F.R. § 498.3(b)(15) and found a right to ALJ review of the effective date of enrollment in Medicare as well as the effective date of the reactivation of billing privileges. See, e.g., Victor Alvarez, M.D., DAB No. 2325 at 3-10 (2010) (determination of effective date of enrollment in Medicare is an initial determination subject to ALJ review and Board appeal); Urology Grp. of NJ LLC, DAB No. 2860 at 6 (2018) (no right to review of a CMS or MAC determination to deactivate billing privileges but right to review of the determination of the effective date of reactivation). Applying the reasoning of the Board in Alvarez and Urology, I conclude that a supplier has the right to ALJ review of the CMS or MAC determination of the effective date of reactivation of billing privileges. Furthermore, the only determination of CMS or the MAC that is subject to my review in a provider and supplier enrollment case is the reconsidered determination. 42 C.F.R. § 498.5(l)(1)-(2); Neb Grp. of Ariz. LLC, DAB No. 2573 at 7 .

The Board in Urology also pointed out that Medicare claim reimbursement is not subject to review by an ALJ in this forum. DAB No. 2860 at 6-7.

3. Summary judgment is appropriate.

I have concluded, based on the rationale of the Board in prior cases, that Petitioner has a right to ALJ review of the reconsidered determination of the effective date of reactivation of her right to file claims with and receive payment from Medicare. I also conclude that

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there are no disputed issues of material fact that require a hearing in this case; CMS is entitled to judgment as a matter of law; and summary judgment is appropriate.

Petitioner is entitled to a hearing on the record before an ALJ under the Act.  Act §§ 205(b); 1866(h)(1), (j); Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004). However, when summary judgment is appropriate, no hearing is required. The Board has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498.  See, e.g., Crestview Parke, 373 F.3d at 748-51; Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997). The Board has accepted that Fed. R. Civ. P. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate. I advised the parties in the Prehearing Order that summary judgment is an available procedural device and that the law as it has developed related to Fed. R. Civ. P. 56 will be applied. Prehearing Order ¶¶ II.D. & G. Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986); Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 5 (2012) (and cases cited therein); Experts Are Us Inc., DAB No. 2452 at 5 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein).

The material facts in this case are not in dispute. Accordingly, summary judgment is appropriate.

4. The effective date of reactivation of Petitioner’s billing privileges is the date on which the MAC received the applications that it processed to approval, and that date is March 9, 2017.

5. Current CMS policy requires a period of retrospective billing related to the reactivation of Medicare billing privileges.

The Secretary’s regulations do not specifically address how to determine an effective date for the reactivation of Medicare billing privileges. 42 C.F.R. pt. 424, subpt. P.4 However, CMS has addressed the determination of the effective date of reactivation by policy. CMS policies regarding deactivations and reactivations of billing privileges in effect at the time of the initial and reconsidered determinations in this case are found in MPIM §§ 15.27.1.1 (deactivation) and 15.27.1.2 (reactivation) (rev. 561, eff. Mar. 18,

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2015). MPIM § 15.27.1.2 provides that the effective date of reactivation is the date the MAC received the reactivation application that the MAC processed to completion. In this case, there is no dispute that the MAC received the applications processed to completion on March 9, 2017. Accordingly, the effective date of reactivation of Petitioner’s billing privileges was March 9, 2017.

The version of MPIM § 15.27.1.2 in effect at the time of the initial and reconsidered determinations did not specifically address retrospective billing. However, effective March 12, 2019, CMS changed its policy and now requires that contractors grant retrospective billing privileges in accordance with MPIM § 15.17(B) (rev. 865, eff. Mar. 12, 2019) when reactivating billing privileges of a provider or supplier described in that section.  MPIM §§ 15.27.1.1-.2 (rev. 865, eff. Mar. 12, 2019). CMS adopted this new policy while this case is pending ALJ review and before a final administrative decision has issued.  Based on the CMS language making retrospective billing mandatory in the situations described in MPIM § 15.17(B), I conclude it is appropriate to implement the current CMS policy in this case.  1 Charles H. Koch, Jr. & Richard Murphy, Admin. L. & Prac. § 4:22 (3d ed. 2019) (generally agency must obey own rules and policies, particularly when intended to be binding); 2 Charles H. Koch, Jr. & Richard Murphy, Admin. L. & Prac. § 5:68 (3d ed. 2019) (generally rule or statement of policy should be given equal effect by all agency adjudicators). Petitioner is a physician and there is no dispute that she was enrolled in Medicare during the gap period and met all requirements for enrollment. CMS’s Response to Specified Issues at 1-2. Therefore, Petitioner is entitled to retrospective billing privileges for up to 30 days prior to the effective date of reactivation of billing privileges for services rendered to Medicare-eligible beneficiaries during that 30-day period. MPIM § 15.17(B)(1).

Petitioner explained in her request for reconsideration the numerous failed attempts to file completed applications and the challenges of communicating with CMS or MAC representatives. CMS Ex. 1 at 5-7. Petitioner makes the same points in her brief. Petitioner asserts that she and staff made every effort to file applications to revalidate and reactivate on time but delays were caused by difficulty communicating with CMS and the MAC or their inaction.  P. Br. I accept Petitioner’s arguments as true for purposes of summary judgment. However, Petitioner’s arguments regarding the failure of the MAC and CMS to accept her earlier applications and their failure to communicate are related to the MAC decision to deactivate Petitioner’s billing privileges.  I do not have jurisdiction to review the decision to deactivate Petitioner’s billing privileges. Petitioner’s arguments may be construed to be for equitable relief or for estoppel. I have no authority to grant equitable relief. US Ultrasound, DAB No. 2302 at 8 (2010). Furthermore, estoppel against the federal government, if available at all, is presumably unavailable absent “affirmative misconduct,” such as fraud.  See, e.g., Pac. Islander Council of Leaders, DAB No. 2091 at 12 (2007); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990). Accordingly, Petitioner’s arguments establish no basis for the relief she seeks.

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III. Conclusion

For the foregoing reasons, I conclude that the effective date of reactivation of Petitioner’s billing privileges is March 9, 2017.

1. All citations are to the amended CMS Ex. 1 filed by CMS on September 22, 2017. Departmental Appeals Board E-Filing System (DAB E-File) # 8b.
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2. The January 28, 2018 CMS motion to substitute for documents filed in error on January 26, 2018, is granted.
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3. Citations are to the October 1, 2015 revision of the Code of Federal Regulations (C.F.R.), which was in effect at the time of the initial determination, unless otherwise indicated. An appellate panel of the Departmental Appeals Board (Board) concluded in Mark A. Kabat, D.O., DAB No. 2875 at 9-11 (2018), that the applicable regulations are those in effect at the time of the initial determination. However, the Board previously concluded that the only determination subject to my review in a provider and supplier enrollment case such as this is the reconsidered determination. Neb Grp. of Ariz. LLC, DAB No. 2573 at 7 (2014).
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4. The effective date for Medicare billing privileges is determined in accordance with 42 C.F.R. § 424.520.
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