Rosemary Sachs, ARNP, DAB CR5383 (2019)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through a CMS contractor, determined that the effective date for reactivation of the Medicare billing privileges for Rosemary Sachs, ARNP (Ms. Sachs or Petitioner) was May 12, 2017.  Petitioner requested an administrative law judge (ALJ) hearing to dispute this effective date.  Because the CMS contractor received Petitioner’s revalidation enrollment application on May 12, 2017, and the CMS contractor approved that application, the CMS contractor correctly determined that the effective date for the reactivation of billing privileges was May 12, 2017.  Therefore, I affirm CMS’s determination.

I. Background and Procedural History

Petitioner was enrolled in the Medicare program as a supplier effective July 1, 2011.  CMS Exhibit (Ex.) 1.

In a June 15, 2016 letter, a CMS contractor sent notice to Petitioner that she needed to revalidate her Medicare enrollment by August 31, 2016.  The letter warned that “[f]ailure

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to respond to this notice will result in a hold on your payments and possible deactivation of your Medicare enrollment.”  CMS Ex. 2 at 1. 

In a February 24, 2017 letter, the CMS contractor informed Petitioner that it had deactivated her Medicare billing privileges as of February 24, 2017, because she had not revalidated her enrollment record.  The letter further explained that Petitioner needed to submit a paper CMS-855 enrollment application or file through CMS’s online system.  CMS Ex. 3. 

On May 8, 2017, Petitioner mailed a CMS-855I enrollment application in which she indicated that she was seeking to revalidate her enrollment and reactivate her billing privileges.  CMS Ex. 6.  On September 21, 2017, the CMS contractor issued an initial determination in which it approved Petitioner’s revalidation enrollment application.  The initial determination noted a December 21, 2015 effective date.  CMS Ex. 7.  In October 2017, Petitioner requested reconsideration asserting that the revalidation request had been sent to the address of a previous employer and that Petitioner never received it.  CMS Ex. 4 at 3.  Petitioner noted that the initial determination provided a December 21, 2015 effective date, yet Petitioner’s claims were being denied from February 24, 2017 to May 21, 2017.  CMS Ex. 4 at 4.  Petitioner also noted in her request that the CMS contractor had received Petitioner’s revalidation enrollment application on May 12, 2017.  CMS Ex. 4 at 4.

In an October 26, 2017 reconsidered determination, the CMS contractor concluded the following: 

Upon review of your reconsideration request and all previously submitted information, a determination has been made that the gap in Medicare billing privileges from February 24, 2017 through May 11, 2017 was issued correctly.  This is due to the provider not responding to the revalidation request within the allotted timeframe.  It is the responsibility of the provider to ensure Medicare is notified within 30 days of all changes which impact the enrollment record.  Therefore, the reconsideration is unfavorable to the provider. 

CMS Ex. 5 at 2.       

Petitioner timely requested a hearing before an ALJ (Hearing Request) to dispute the reconsidered determination.  Petitioner provided a timeline of events, which included Petitioner’s efforts to reassign her Medicare benefits to a group practice.  The hearing request asserted that during protracted dealings with the CMS contractor’s personnel related to the reassignment, at no time did the CMS contractor’s personnel mention that

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Petitioner failed to revalidate in 2016.  The Hearing Request again indicated that the CMS contractor had received Petitioner’s revalidation enrollment application as of May 12, 2017.

This case was originally assigned to Judge Bill Thomas, who issued an Acknowledgment and Pre-Hearing Order (Pre‑Hearing Order) on December 4, 2017.  In response, CMS filed a motion for summary judgment and pre-hearing brief.  CMS attached a copy of the reconsidered determination, but failed to mark that document as an exhibit.  Otherwise, CMS filed no exhibits.  Petitioner filed a pre-hearing brief (P. Br.) that essentially provided the same argument as in the Hearing Request.  Petitioner also submitted two exhibits (P. Exs. 1-2), which are documents related to enrollment issues for other Medicare suppliers.   

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

Because the record in this matter was incomplete, I directed CMS to provide all documents the CMS contractor referenced or considered during the reconsideration stage in the appeal process.  See 42 C.F.R. § 498.60(b)(1)-(2).  CMS then submitted seven exhibits (CMS Exs. 1-7).

II. Decision on the Written Record

I admit CMS Exs. 1-7 into the record because Petitioner did not object to any of them and they are relevant and material to this case.  I exclude P. Exs. 1-2 because they do not directly relate to Petitioner’s revalidation or reactivation, and involve Medicare suppliers who are not parties to this case.  Therefore, those documents are not relevant and material to the issue in this case.  42 C.F.R. § 498.60(b)(1).

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 cross‑examine a witness.  Pre-Hearing Order ¶¶ 8-10; Civil Remedies Division Procedures (CRDP) §§ 16(b), 19(b).  Neither party 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 May 12, 2017, as the effective date for the reactivation of Petitioner’s Medicare billing privileges.

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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.  “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).

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).

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1. Petitioner mailed a revalidation enrollment application (CMS-855I) via priority mail on May 8, 2017, which the CMS contractor received on May 12, 2017.  The CMS contractor approved that application on September 21, 2017.

Petitioner mailed her revalidation enrollment application to the CMS contractor on May 8, 2017.  CMS Ex. 6 at 35.  The CMS contractor received that revalidation enrollment application on May 12, 2017.  CMS Ex. 4 at 4; CMS Ex. 5 at 2; Hearing Request at 2; P. Br. at 1.  The CMS contractor approved the revalidation enrollment application on September 21, 2017.  CMS Ex. 7.     

2. The effective date for Petitioner’s Medicare billing privileges is May 12, 2017.

Petitioner is a nurse practitioner.  CMS Ex. 6 at 8, 32-34.  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 that 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 42 C.F.R. § 424.520(d) and with 42 C.F.R.§ 424.555(b)’s prohibition on reimbursing services performed by deactivated suppliers.

In the present case, the CMS contractor initially determined that Petitioner’s effective date for reactivation of her Medicare billing privileges was December 21, 2015.  CMS Ex. 7 at 1.  However, such a date was obviously incorrect given that the CMS contractor had deactivated Petitioner on February 24, 2017.  CMS Ex. 3 at 1.  Apparently the CMS contractor actually considered May 12, 2017, to be the effective date for reactivation, even though this was not stated in the initial determination.  CMS Ex. 4 at 4.  When the CMS contractor issued the reconsidered determination, it confirmed that May 12, 2017, was the reactivation effective date.  CMS Ex. 5 at 2 (upholding a gap in Medicare billing privileges from February 24, 2017 through May 11, 2017). 

Based on the record, May 12, 2017 appears to be the correct effective date for reactivation.  Petitioner mailed the revalidation enrollment application on May 8, 2017, to the CMS contractor and has consistently asserted that the CMS contractor received the revalidation enrollment application on May 12, 2017.  Further, the reconsidered determination also asserted the CMS contractor received the revalidation enrollment

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application on May 12, 2017.  There is no evidence in the record of the date of receipt; however, the parties are in agreement that May 12, 2017 is the correct date. 

Further, the record confirms that the CMS contractor approved the revalidation enrollment application.  Therefore, under the regulations summarized above, the CMS contractor correctly established May 12, 2017, as the effective date of reactivation. 

With respect to Petitioner’s argument that she did not receive notice to revalidate because it was sent to an incorrect address and that the CMS contractor’s personnel allegedly did not tell Petitioner of the need to revalidate during telephone conversations regarding an application to reassign Medicare benefits, I do not have the authority to consider those matters.  I cannot review the CMS contractor’s actions related to the deactivation of Medicare billing privileges because 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); Willie Goffney, Jr., M.D., DAB No. 2763 at 4-5 (2017).  I am only authorized to review the assignment of the effective date of reactivation.  See 43 C.F.R. § 498.3(b)(15).    

Further, to the extent that Petitioner seeks an earlier effective date because the CMS contractor’s personnel could have, but failed to inform Petitioner of the need to revalidate when Petitioner was discussing a reassignment matter with them, 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

I affirm CMS’s determination that Petitioner’s effective date for Medicare billing privileges is May 12, 2017.