Jesse Liu, OD, DAB CR5404 (2019)

DECISION

Petitioner’s Medicare billing privileges were deactivated on November 8, 2017, as a result of his failure to timely comply with a request that he revalidate his Medicare enrollment. For the reasons discussed below, I conclude that the effective date of Petitioner’s reactivated Medicare billing privileges remains December 8, 2017.

I. Background and Procedural History

On June 9, 2017, Noridian Healthcare Solutions (Noridian), a Medicare administrative contractor, sent a letter to Petitioner, an optometrist, requesting that he revalidate his individual Medicare enrollment record no later than August 31, 2017.1  See Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 1; see CMS Ex. 2 at 2.  Noridian instructed Petitioner to “update or confirm all the information in [his] record, including [his] practice locations and reassignments.”  CMS Ex. 1 at 1.  Noridian cautioned Petitioner that, if “[his] enrollment is deactivated,” he “will not be paid for services

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rendered during the period of deactivation” which “will cause a gap in [his] reimbursement.” CMS Ex. 1 at 1. Noridian indicated that Petitioner’s enrollment record included provider transaction access number (PTAN)2 G8913135. Although the letter instructed him to confirm his practice locations and reassignments, it did not specifically list any reassignments.3

On September 28, 2017, Noridian sent Petitioner a letter informing him that it had not received a revalidation application by the August 31, 2017 deadline.  CMS Ex. 10 at 1.  Noridian again warned Petitioner that his billing privileges could be deactivated, which would cause a gap in his Medicare reimbursement.  CMS Ex. 10 at 1.

In a letter dated November 17, 2017, Noridian informed Petitioner that it had deactivated his billing privileges on November 8, 2017, because he had not complied with its request that he revalidate his enrollment record.  CMS Ex. 6 at 1.

On December 8, 2017, Petitioner revalidated his enrollment record by submitting a Form CMS-855I enrollment application.4  See CMS Exs. 7 at 2; 2 at 4.

In a letter dated December 15, 2017, Noridian informed Petitioner that it had approved his revalidation application and reactivated his billing privileges, but that he had a “lapse in coverage dates” from November 8 through December 7, 2017.  CMS Ex. 3 at 1.  Immediately thereafter, Petitioner submitted a request for reconsideration in which he disputed the effective date assigned for his reactivated billing privileges.  CMS Ex. 4.  Petitioner alleged that he was “misled on two occasions” by Noridian employees with whom his office manager spoke by telephone. CMS Ex. 4.

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Noridian issued a reconsidered determination on March 1, 2018, in which it maintained the December 8, 2017 effective date of Petitioner’s reactivated billing privileges.  CMS Ex. 7 at 2.  Noridian explained that Petitioner did not revalidate his enrollment record in compliance with the June 2017 revalidation request, and that he did not submit an application for purposes of revalidation until December 8, 2017.  CMS Ex. 7 at 2.

Petitioner submitted a request for an administrative law judge (ALJ) hearing that was received on April 24, 2018. ALJ Carolyn Cozad Hughes issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) on May 2, 2018, at which time she directed the parties to file their respective pre-hearing exchanges.5 CMS filed a Motion for Summary Judgment and Pre-Hearing Brief (CMS Br.), along with 10 proposed exhibits (CMS Exs. 1-10).  Petitioner filed a brief and cross-motion for summary judgment (P. Br.) and seven exhibits (P. Exs. 1-7).  In the absence of any objections, I admit CMS Exs. 1-10 and P. Exs. 1-7 into the evidentiary record.

A hearing for the purpose of cross-examination is unnecessary because neither party has submitted written direct testimony. Pre-Hearing Order, §§ 8-10. I consider the record in this case to be closed, and the matter is ready for a decision on the merits.6

II. Issue

Whether CMS had a legitimate basis to assign Petitioner a December 8, 2017 effective date for his reactivated Medicare billing privileges.

III. Jurisdiction

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

IV. Findings of Fact, Conclusions of Law, and Analysis7

1. On or about June 9, 2017, Noridian requested that Petitioner revalidate his Medicare enrollment record no later than August 31, 2017.

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2. On November 8, 2017, after Petitioner did not timely submit a complete revalidation application, Noridian deactivated Petitioner’s billing privileges.

3. On December 8, 2017, Petitioner submitted an enrollment application for purposes of revalidation.

4. Noridian approved the revalidation application and assigned a December 8, 2017 effective date for Petitioner’s reactivated Medicare billing privileges.

5. An effective date earlier than December 8, 2017, is not warranted for the reactivation of Petitioner’s Medicare enrollment and billing privileges.

As an optometrist, Petitioner is a “supplier” for purposes of the Medicare program.  See CMS Ex. 2 at 2; see also 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202 (definition of supplier); 498.2.  A “supplier” furnishes items or services under Medicare and the term applies to physicians or other practitioners who are not included within the definition of the phrase “provider of services.”  42 U.S.C. § 1395x(d).  A supplier must enroll in the Medicare program to receive payment for covered Medicare items or services.  42 C.F.R. § 424.505.  The regulations at 42 C.F.R. Part 424, subpart P, establish the requirements for a supplier to enroll in the Medicare program.  42 C.F.R. §§ 424.510-424.516; see also 42 U.S.C. § 1395cc(j)(1)(A) (authorizing the Secretary of the U.S. Department of Health and Human Services to establish regulations addressing the enrollment of providers and suppliers in the Medicare program).  A supplier who seeks billing privileges under Medicare “must submit enrollment information on the applicable enrollment application.”  42 C.F.R. § 424.510(a)(1).  “Once the provider or supplier successfully completes the enrollment process . . . CMS enrolls the provider or supplier into the Medicare program.”  Id.; see also 42 C.F.R. § 424.510(d) (listing enrollment requirements).  Thereafter, “[t]o maintain Medicare billing privileges, a . . . supplier . . . must resubmit and recertify the accuracy of its enrollment information every 5 years.”  42 C.F.R. § 424.515.  Further, a supplier “may be required to revalidate [its] enrollment outside the routine 5-year revalidation cycle.”  42 C.F.R. § 424.515(e).

CMS is authorized to deactivate an enrolled supplier’s Medicare billing privileges if the enrollee does not provide complete and accurate information within 90 days of “receipt of notification” to revalidate enrollment.  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); Urology Grp. of NJ, LLC, DAB No. 2860 at 10 (2018) (“The regulations, taken together, clearly establish that a deactivated provider or supplier was not intended to be entitled to Medicare reimbursement for services rendered during the period of

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deactivation.”).  Further, and quite significantly, the Departmental Appeals Board (DAB) has unambiguously stated that “[i]t is certainly true that [the petitioner] may not receive payment for claims for services during any period when his billing privileges were deactivated.”  Willie Goffney, Jr., M.D., DAB No. 2763 at 6 (2017); see Urology Grp., DAB No. 2860 at 11 (“Taking [the] 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.”); Frederick Brodeur, M.D., DAB No. 2857 at 16 (2018) (“Allowing a deactivated supplier to bill for services furnished during a period of deactivation would conflict with section 424.555(b) of the regulations . . . .”).  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).

In June 2017, Noridian mailed a letter to Petitioner directing him to revalidate his Medicare enrollment record no later than August 31, 2017, and Noridian warned that Petitioner’s failure to revalidate could result in deactivation of his Medicare billing privileges, with a resulting gap in reimbursement.  CMS Exs. 1 at 1; 5 at 1.  After Petitioner did not submit a complete enrollment application, despite being given additional time to do so, Noridian deactivated Petitioner’s billing privileges on November 8, 2017.  CMS Ex. 6 at 1.

The pertinent regulation with respect to the effective date of reactivation is 42 C.F.R. § 424.520(d).  Urology Grp., DAB No. 2860 at 7 (“The governing authority to determine the effective date for reactivation of Petitioner’s Medicare billing privileges is 42 C.F.R. § 424.520(d)” (italics omitted).).  Section 424.520(d) states that “[t]he effective date for billing privileges for physicians, non-physician practitioners, physician and non-physician practitioner organizations . . . is the later of – (1) [t]he date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or (2) [t]he date that the supplier first began furnishing services at a new practice location.”  The DAB has explained that the “date of filing” is the date “that an application, however sent to a contractor, is actually received.”  Alexander C. Gatzimos, MD, JD, LLC, DAB No. 2730 at 5 (2016) (emphasis omitted).  Noridian deactivated Petitioner’s billing privileges because he did not submit a revalidation application in response to the revalidation request, and it was not until December 8, 2017, that Noridian received Petitioner’s application for purposes of revalidation.  CMS Ex. 6; see CMS Ex. 7.  Based on the December 8, 2017 receipt date of the enrollment application that was processed to approval, Noridian did not err in assigning a December 8, 2017 effective date for reactivated billing privileges.  42 C.F.R. § 424.520(d); see Urology Grp., DAB No. 2860 at 9 (“Moreover, the fact that a supplier must file a new enrollment application

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in order to reactivate its billing privileges is consistent with the language of section 424.520(d) and compelling evidence that the provision should apply to reactivations.”); Willie Goffney, DAB No. 2763 at 6 (“It is certainly true that [the petitioner] may not receive payment for claims for services during any period when his billing privileges were deactivated.”); Frederick Brodeur, DAB No. 2857 at 16 (“Petitioner remained enrolled in Medicare, but his deactivated status made [him] ineligible for payment for any covered services he furnished to otherwise eligible Medicare beneficiaries, pursuant to section 424.555(b), until he provided the information necessary to reactivate his billing privileges.”).

Petitioner is challenging the one-month gap in his Medicare billing privileges, and he argues that his deactivation was “due to misleading information on 3 separate occasions.”  P. Br. at 2.  However, the deactivation of Petitioner’s billing privileges is not reviewable.  Frederick Brodeur, DAB No. 2857 at 12 (“A contractor’s deactivation decision is not an initial determination subject to ALJ or [DAB] review.”); Willie Goffney, DAB No. 2763 at 5 (stating no regulation provides appeal rights with respect to the contractor’s deactivation determination).  I can only review the effective date assigned for Petitioner’s reactivated billing privileges, and Petitioner does not dispute the appropriateness of the December 8, 2017 effective date of his reactivation.  See P. Br. at 2 (Petitioner’s acknowledgement that Noridian received his revalidation application on December 8, 2017).  Based on the December 8, 2017 receipt date of Petitioner’s revalidation application, Noridian had a legitimate basis to assign an effective date of December 8, 2017, for Petitioner’s reactivated billing privileges. 42 C.F.R. § 424.520(d).

Even assuming, for the sake of this discussion, that Petitioner received “misleading information” from Noridian employees,8 I reiterate that I am not empowered to review

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the deactivation of Petitioner’s billing privileges; the scope of my review is limited to whether Noridian assigned the correct effective date when it reactivated Petitioner’s billing privileges.  See Frederick Brodeur, DAB No. 2857 at 12.  Petitioner has not claimed that he submitted a revalidation application prior to December 8, 2017, and therefore, there is no basis to establish an earlier date of reactivated billing privileges.  42 C.F.R. § 424.520(d).

The documentary evidence indicates that Noridian informed Petitioner in writing that he needed to revalidate his enrollment record and cautioned him to “update or confirm all the information in [his] record” in order to avoid a gap in his Medicare reimbursements.  CMS Exs. 1 at 1; 5 at 1.  Noridian explained that Petitioner should use the Provider, Enrollment, Chain and Ownership System (PECOS) or submit the appropriate enrollment application.  CMS Exs. 1 at 1; 5 at 1.  And after a Noridian employee (“Jay”) purportedly told Petitioner’s office manager that Petitioner did not need to revalidate his enrollment record (P. Br. at 1), Noridian thereafter sent written notice in September 2017 once again directing Petitioner to revalidate his enrollment record and cautioning that failure to revalidate could cause a gap in Petitioner’s Medicare billing privileges.  CMS Ex. 10 at 1.  At that time, Noridian again directed Petitioner to revalidate his enrollment record through PECOS or by submitting the appropriate Form CMS-855 application.  CMS Ex. 10 at 1.  Despite receiving this second notice, Petitioner did not submit a revalidation application. And after Noridian informed Petitioner on November 17, 2017, that it had deactivated his billing privileges due to his failure to revalidate his enrollment record, Noridian did not receive an enrollment application for purposes of revalidation until December 8, 2017.  Even if Petitioner received incorrect information or simply misunderstood the instructions he received from Noridian employees by telephone, the documentary record establishes that Noridian clearly informed Petitioner multiple times that he needed to revalidate his enrollment record by submitting an enrollment application and that his failure to do so would adversely affect his billing privileges.  CMS Exs. 1, 5, 6, 10.  Even if I had the authority to review the deactivation of Petitioner’s billing privileges, Petitioner has not shown any error on the part of Noridian with respect to the deactivation of Petitioner’s billing privileges.

Petitioner also contends that he should not have been required to revalidate his enrollment record. Petitioner claims that he “had submitted a revalidation [on] 9/27/16, only 9 months prior to the [revalidation request] letter.”  P. Br. at 1.  Petitioner has presented no evidence that he revalidated his individual Medicare enrollment in September 2016.9 Further, and even if he had revalidated his individual enrollment

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record in September 2016, 42 C.F.R. § 424.515(e) provides that revalidation may be required outside of the routine five-year cycle.  Therefore, Noridian would have been within its authority to ask him to revalidate his enrollment record nine months after a previous revalidation.

Petitioner also argues that he should not have been required to revalidate “the old PTAN” (G8913135) that he claims he was no longer using.  P. Br. at 2.  Petitioner points to no evidence indicating that he asked Noridian to terminate this PTAN when he reassigned benefits to Marysville Vision Source, PA.10 Therefore, and because PTAN G8913135 continued to be an active PTAN after Petitioner obtained another PTAN in connection with his new practice, Noridian appropriately included PTAN G8913135 within the scope of the revalidation request.

Noridian had a legitimate basis to deactivate Petitioner’s billing privileges when he failed to respond to the revalidation request, and it had a legitimate basis to assign a December 8, 2017 effective date for his reactivated billing privileges based on the date he submitted the enrollment application that was ultimately processed to approval.  42 C.F.R. § 424.520(d).

To the extent that Petitioner’s request for relief is based on principles of equitable relief, I cannot grant such relief.  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.”).  Petitioner points to no authority by which I may grant him relief from the applicable regulatory requirements, and I have no authority to declare statutes or regulations invalid or ultra vires.  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 . . . .”).

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V. Conclusion

For the foregoing reasons, I uphold the December 8, 2017 effective date of Petitioner’s reactivated Medicare billing privileges.

1. CMS Ex. 5 is a substantively identical copy of this letter but bears a later date of June 12, 2017.
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2. A PTAN is a Medicare-specific number used by an individual or entity with billing privileges. See, e.g., 42 C.F.R. §§ 424.505, 424.550(a).
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3. Prior to November 9, 2016, Petitioner maintained billing privileges under PTAN G8913135. In October 2016, Petitioner submitted an application to reassign benefits to Marysville Vision Source, PA, at which time he did not terminate this billing number. See CMS Ex. 8; P. Br. at 2 (alleging that Noridian did not tell him to terminate this PTAN). In December 2016, Noridian granted Petitioner’s application to reassign his benefits to Marysville Vison Source, PA, and assigned Petitioner a second PTAN, G8960982. CMS Ex. 9 at 1.
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4. CMS did not file a copy of this application as a proposed exhibit. However, Petitioner does not dispute this fact. P. Br. at 2 (“A revalidation was submitted – tracking ID: T120820170001368, which was accepted on 12/8/18 with Jesse Liu’s Medicare privileges being restored beginning 12/8/18.”).
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5. This case was reassigned to me on March 8, 2019.
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6. Because a hearing is unnecessary, I need not address whether summary judgment is appropriate.
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7. Findings of fact and conclusions of law are in italics and bold font.
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8. Petitioner, through unsworn statements contained in his written submissions, complains that several Noridian employees provided misleading information in telephone conversations with his office manager. See Pre-Hearing Order § 8 (instructing the parties to submit witness testimony in the form of an affidavit made under oath or a written declaration that the witness signs under penalty of perjury). Petitioner argues that, on July 14, 2017, “Jay” told his officer manager that Petitioner did not need to revalidate his enrollment. However, Noridian subsequently confirmed, in writing, that Petitioner needed to revalidate his individual enrollment record. CMS Exs. 6 at 1; 10 at 1. Petitioner also argues that “Louisa” and “Meg” somehow mislead his office manager, in that Louisa told the office manager to submit a new “application” and Meg conflicted Louisa by instructing the office manager to submit a new “revalidation.” P. Br. at 1-2. Petitioner was required to submit an enrollment application to revalidate his enrollment, and there appears to be no distinction in Noridian employees’ use of the terms “revalidation” and “application.” In order to submit a “revalidation,” one must submit an application. See 42 C.F.R. § 424.520(d).
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9. Petitioner reports that he purchased Marysville Vision Source, PA, in August 2016. It appears that Petitioner submitted an enrollment application for Marysville Vision Source, PA at that time. See P. Br. at 2 (Petitioner’s explanation that Noridian directed his office manager to submit, inter alia, an enrollment application after he purchased the group practice).
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10. Petitioner alleges that when he inquired about the paperwork he needed to submit to establish Medicare billing privileges with respect to Marysville Vision Source, PA, Noridian did not instruct him to terminate PTAN G8913135. P. Br. at 2. I would not expect that Noridian would have directed Petitioner to terminate another PTAN, in that such a matter would have been outside the scope of Petitioner’s inquiry.
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