Ernest Troisi, DPM, DAB CR5406 (2019)

DECISION

Petitioner’s Medicare billing privileges were deactivated on August 17, 2017, as a result of his failure to timely comply with a request that he revalidate his individual Medicare enrollment record.  For the reasons discussed below, I conclude that the effective date of Petitioner’s reactivated Medicare enrollment and billing privileges remains September 6, 2017.

I. Background and Procedural History

On June 15, 2016, Novitas Solutions (Novitas), a Medicare administrative contractor, sent a letter to Petitioner, a podiatrist, requesting that he revalidate his individual Medicare enrollment record, to include his reassignments of benefits, no later than August 31, 2016.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 4 at 1, 4; see CMS Ex. 1 at 9.  Novitas mailed the letter to two separate addresses in Wilmington, Delaware.1   CMS Ex. 4 at 1, 4.  Novitas instructed Petitioner to “update or

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confirm all the information in [his] record . . . .”  CMS Ex. 4 at 1.  Novitas cautioned Petitioner that a “[f]ailure to respond to this notice will result in a hold on [his] payments, and possible deactivation of [his] Medicare enrollment,” and further warned that, in the event of deactivation, “[Petitioner] will not be paid for services rendered during the period of deactivation” which “will cause a gap in [his] reimbursement.”  CMS Ex. 4 at 1.

On July 22, 2017, more than a year after Novitas first requested that Petitioner revalidate his enrollment, Novitas mailed another revalidation request to an address on Glasgow Ave. in Wilmington, Delaware.2   CMS Ex. 5 at 1.  At that time, Novitas explained that Petitioner had not complied with a previous revalidation request, and it directed Petitioner to revalidate his individual enrollment record, to include his reassignments of benefits.  CMS Ex. 5 at 1.  Novitas again cautioned that Petitioner’s failure to revalidate could cause deactivation of his billing privileges and a gap in reimbursement.  CMS Ex. 5 at 1.

After Petitioner did not submit a revalidation application in response to the contractor’s requests, Novitas informed Petitioner on August 17, 2017, that it had deactivated his billing privileges effective that same day.3   CMS Ex. 6 at 1.  Novitas explained that Petitioner had not responded to the June 15, 2016 revalidation request, and that he should revalidate his enrollment record in order to reactivate his billing privileges.  CMS Ex. 6 at 1.  

Petitioner submitted a revalidation enrollment application, Form CMS-855I, via the internet-based Provider, Enrollment, Chain, and Ownership System (PECOS) that Novitas received on September 6, 2017.4   CMS Ex. 7 at 1.  Petitioner also submitted an

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application to reassign his benefits.5   CMS Ex. 7 at 5.  Shortly thereafter, Petitioner mailed hard copy enrollment applications, along with a copy of the July 22, 2017 letter requesting that he revalidate his enrollment.  CMS Ex. 8.

In a letter dated September 21, 2017, Novitas informed Petitioner that it had approved his revalidation application.6   CMS Ex. 9.  Petitioner disputed the gap in his reactivated billing privileges in a November 2017 reconsideration request in which he claimed that “Revalidation Notices were not received in the office.”  CMS Ex. 10 at 2.  Petitioner further argued:

It is my understanding that Medicare sends out notices to the provider prior to the revalidation date, either via email or regular postal service from the addresses on file.  However, I never received ANY of the Revalidation Notice letters at my main office in Glasgow Medical Center . . . as well as Christiana Care Health Services in Wilmington, DE.  We moved from suite 107 at Glasgow Medical Center approximately 1 year ago.  If any revalidation correspondence was sent to that suite, it was not forwarded to our current 101 suite.  If any of the revalidation correspondence was sent to the Christiana Care address, I would not have received them because I do not receive correspondence at that location.  Christiana Care is a hospital where I provide services but do not maintain an office.  I do not believe that I should be penalized with a lapse of payments for services rendered between 8/17/2017 – 09/05/2017, due to the possibility of outdated contact information within the provider file, which resulted in my not receiving any Revalidation Notice

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correspondence, and led to the deactivation of my billing privileges. 

CMS Ex. 10 at 3. 

Novitas issued a reconsidered determination on January 30, 2018, wherein it maintained the September 6, 2017 effective date of Petitioner’s reactivated billing privileges.  CMS Ex. 11 at 1-3.  Novitas explained that it received the enrollment application for purposes of reactivation on September 6, 2017.  CMS Ex. 11 at 2.  The reconsidered determination stated that “[t]he gap in coverage is applied when a provider/supplier is non-responsive to a revalidation request” and that the effective date of reactivated billing privileges was “based on the receipt date of the [revalidation] application.”  CMS Ex. 11 at 3.  

Petitioner, through counsel, submitted a request for an administrative law judge (ALJ) hearing that was received on March 30, 2018.  ALJ Bill Thomas issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) on April 9, 2018, at which time he directed the parties to file their respective pre-hearing exchanges.7   CMS filed a motion for summary judgment and pre-hearing brief (CMS Br.), along with 13 proposed exhibits (CMS Exs. 1-13).  Petitioner filed an opposition to CMS’s motion for summary judgment and pre-hearing brief (P. Br.), along with five proposed exhibits (P. Exs. 1-5).I admit the corrected version of P. Ex. 1.8 CMS filed a reply brief.  In the absence of any objections, I admit all submitted exhibits into the evidentiary record.

Neither party has requested an opportunity to cross-examine any witnesses at a hearing, and a hearing is therefore unnecessary.  See Pre-Hearing Order, §§ 8, 9, 10.  I consider the record in this case to be closed, and the matter is ready for a decision on the merits.9

II. Issue

Whether CMS had a legitimate basis to assign Petitioner a September 6, 2017 effective date for his reactivated billing privileges.

III. Jurisdiction

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

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IV. Findings of Fact, Conclusions of Law, and Analysis10

1. On June 15, 2016, Novitas requested that Petitioner revalidate his individual Medicare enrollment record no later than August 31, 2016.

2. Petitioner did not respond to the revalidation request, and Novitas deactivated Petitioner’s billing privileges effective August 17, 2017.

3. Novitas received Petitioner’s enrollment applications for purposes of revalidation and reactivation on September 6, 2017, and Novitas ultimately processed those applications to approval.

4. An effective date earlier than September 6, 2017, is not warranted for the reactivation of Petitioner’s Medicare enrollment and billing privileges.

As a podiatrist, Petitioner is a “supplier” for purposes of the Medicare program.  See CMS Ex. 7 at 3; 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.”  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.

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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 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 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 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).

On June 15, 2016, Novitas mailed a letter to Petitioner directing him to revalidate his Medicare enrollment record no later than August 31, 2016, and Novitas warned that Petitioner’s failure to revalidate could result in deactivation of his Medicare billing privileges, with a resulting gap in reimbursement.  CMS Ex. 4 at 1.  More than a year later, on July 22, 2017, Novitas informed Petitioner that his response was overdue and allowed Petitioner another opportunity to belatedly revalidate his enrollment record.  CMS Ex. 5 at 1.  Novitas thereafter deactivated Petitioner’s billing privileges on August 17, 2017, after Petitioner did not revalidate his individual enrollment record.  CMS Ex. 6 at 1.  In seeking reconsideration, Petitioner contended Novitas did not send the revalidation requests to the correct address.  CMS Ex. 10 at 2, 3.  Likewise, in his brief, Petitioner argues that Novitas “repeatedly” sent revalidation requests to the “wrong address.”  P. Br. 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,

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MD, JD, LLC, DAB No. 2730 at 5 (2016) (emphasis omitted).  Novitas deactivated Petitioner’s billing privileges based on his failure to comply with the revalidation request (CMS Ex. 6 at 1), and, on September 6, 2017, Petitioner filed enrollment applications for purposes of revalidation and reactivation that were processed to approval.  CMS Exs. 7, 8, 9.  Based on the September 6, 2017 receipt date of the enrollment applications that were processed to approval, Novitas did not err in assigning a September 6, 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 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 contends that CMS “improperly applied the applicable statutes and regulations in calculating September 6, 2017 as the effective date of [his] reactivation.”  P. Br. at 15.11  The deactivation of Petitioner’s billing privileges on August 17, 2017, based on his failure to comply with a revalidation request, is not reviewable.  Willie Goffney, DAB No. 2763 at 5 (stating no regulation provides appeal rights with respect to the contractor’s deactivation); Frederick Brodeur, DAB No. 2857 at 12 (“A contractor’s deactivation decision is not an initial determination subject to ALJ or [DAB] review.”); Arkansas Health Grp. , DAB No. 2929 at 12 (2019) (“Where, as here, the contractor deactivated Petitioner’s billing privileges, the issue for us (and the ALJ) is the effective date of reactivation.”).  I can only review the effective date assigned for Petitioner’s reactivated billing privileges, and Petitioner has not presented evidence that the effective date of reactivation, September 6, 2017, was inappropriate.  Pursuant to 42 C.F.R. § 424.520(d), Novitas had a legitimate basis to assign an effective date of September 6, 2017, for Petitioner’s reactivated billing privileges.

Even though Petitioner has no right to challenge the deactivation of his billing privileges, I will briefly address Petitioner’s arguments.  Petitioner, through his counsel, argues that Novitas erred because it did not mail the initial revalidation request to the Glasgow Ave. address in Wilmington, Delaware.  P. Br. at 3.  Petitioner accuses Novitas of committing a “mistake” and “negligence,” and urges that I “correct an administrative mistake or error by CMS, rather than allowing that error to unfairly fall on a provider.”  P. Br. at 1-2.  Petitioner also argues that Novitas incorrectly sent the revalidation request to Christiana

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Care Health Services (Wilmington Hospital).  P. Br. at 14; see P. Ex. 1 (letter from Susan M. Gordon, Senior Counsel, Christiana Care Health Services, Inc., explaining that Petitioner “has not had an employment relationship with Christiana Care Health Services, Inc. . . . since June 30, 2016” and that Petitioner “does not have a mailbox at any Christiana Care site.”); P. Ex. 3 (affidavit by Petitioner stating that he had not “ever received mail at Wilmington Hospital, 501 West 14th Street, Wilmington, Delaware 19801.”).

Petitioner argues that “[i]f, in fact, CMS had properly sent the original revalidation notice to the correct address (provided by Petitioner and obviously known to CMS from its prior and subsequent mailing to the 2000 Glasgow Ave. address), this matter would not be before the Board.”  P. Br. at 3.  Petitioner further argues that “Novitas was mistakenly using Petitioner’s 2011 correspondence address, rather than the correct Glasgow Ave. address, about which Petitioner notified Novitas in 2016, and which was confirmed in writing by Novitas itself in the May 26, 2016 letter.”  P. Br. at 4.  However, Petitioner did not notify Novitas, by updating his individual enrollment record, that he had a new address on Glasgow Ave. in 2016; rather, Delaware Foot & Ankle Group, PA, a group practice to which he reassigned benefits, informed Novitas of its new address in May 2016.  CMS Ex. 2; see CMS Ex. 3.  To accept Petitioner’s arguments at face value would require me to essentially determine that a group practice’s update of its enrollment record should simultaneously serve to update the individual enrollment records of any practitioners who have reassigned benefits to that practice, regardless of whether each individual practitioner wished to update his or her enrollment record or whether each individual practitioner had other reassignments. Petitioner provides no legal support for this bare assertion, and the Medicare enrollment process requires a practitioner such as Petitioner to individually maintain an up-to-date Medicare enrollment record.12   See 42 C.F.R. §§ 424.510, 424.515.  Petitioner’s individual enrollment record did not include the Glasgow Ave. address (CMS Ex. 1), and therefore, he has not supported his allegation that Novitas was “grossly careless” when it did not mail the revalidation request to the Glasgow Ave. address.  P. Br. at 5.  The simple fact is that the Glasgow Ave. address was not listed in Petitioner’s individual enrollment record prior to September 2017, and the May 2016 application submitted by Delaware Foot & Ankle Group, PA, served to update only the group practice’s enrollment record.  See, e.g, CMS Ex. 1 at 2 (Form CMS-855I individual enrollment application instructing a physician to complete the application “if you are an individual practitioner who plans to bill Medicare and you . . . need to make changes to your enrollment information (e.g., you have added or changed a practice location)”); CMS Ex. 2 at 2-3 (Form CMS-855B enrollment application for Clinics/Group Practices and Certain Other Suppliers, stating that, as relevant here, a

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“Clinic/Group Practice” can update its enrollment information by submitting that particular application).  Petitioner failed to maintain an up-to-date correspondence address in his individual enrollment record, and Novitas did not err by not sending the June 2016 revalidation request to the Glasgow Ave. address.13

Novitas 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 September 6, 2017 effective date for his reactivated billing privileges based on the date he submitted the enrollment application to revalidate his individual enrollment that was subsequently approved.  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 . . . .”).

V. Conclusion

For the foregoing reasons, I uphold the September 6, 2017 effective date of Petitioner’s reactivated billing privileges.

1. Novitas mailed the request to a post office box and to Wilmington Hospital, 501 West 14th Street, in Wilmington, Delaware.  While the basis for the post office box address is not apparent, Petitioner listed the Wilmington Hospital address in a July 2011 Form CMS-855I individual enrollment application as the “[c]orrespondence address” to be used if the contractor “needs to contact [him] directly.”  CMS Ex. 1 at 7.
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2. The Glasgow Ave. address is the address for Delaware Foot & Ankle Group, PA, which is one of two entities to which Petitioner reassigned his benefits.  CMS Ex. 4 at 1 (revalidation request listing Petitioner’s reassignments); see CMS Ex. 2 at 9 (May 2016 Form CMS-855B enrollment application for Delaware Foot & Ankle Group, PA, listing the Glasgow Ave. address).
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3. Novitas mailed this letter to the correspondence address listed in Petitioner’s individual enrollment record.  CMS Ex. 6 at 1; see CMS Ex. 1 at 7.
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4. When Petitioner ultimately complied with the revalidation request, he listed the Glasgow Ave. address throughout his enrollment application.  CMS Ex. 7 at 2-4.
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5. In addition to reassigning benefits to the Delaware Foot & Ankle Group, PA, Petitioner reassigned benefits to Christiana Care Health Services at 501 W 14th Street in Wilmington, Delaware.  See CMS Ex. 7 at 5.  Novitas mailed the revalidation request and deactivation notice to this same address (also listed as Wilmington Hospital).  CMS Exs. 4 at 1; 6 at 1.
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6. The copy of the initial determination letter submitted by CMS does not reference a gap in billing privileges, and it simply reports that the “Effective date[s]” of Petitioner’s two Provider Transaction Access Numbers (PTANs) are “June 13, 2011” and “November 1, 1999.”  CMS Ex. 9 at 1-2.  However, Petitioner timely requested reconsideration to challenge this gap (CMS Ex. 10), and Novitas addressed the gap in billing privileges in its reconsidered determination and reported that the effective date of Petitioner’s reactivated billing privileges was “September 6, 2017.”  CMS Ex. 11 at 2, 3.
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7. This case was reassigned to me on March 8, 2019.
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8. I admit the corrected version of P. Ex. 1.
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9. Because a hearing is unnecessary, I need not address whether summary judgment is appropriate.
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10. Findings of fact and conclusions of law are in italics and bold font.
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11. Petitioner does not argue that he submitted his reactivation application prior to September 6, 2017.  P. Br.
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12. I note that many practitioners have multiple reassignments of benefits, and not every practitioner would endorse having his or her correspondence address changed whenever one of his or her reassignees updated its enrollment information.
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13. Further, after patiently waiting more than a year for Petitioner to revalidate his individual enrollment record, Novitas mailed a letter to the Glasgow Ave. address in which it explained that his revalidation was overdue.  CMS Ex. 5 at 1.  It appears that Petitioner received this letter, in that a copy of this letter is included with Petitioner’s submission of hard copy enrollment applications in September 2017.  CMS Ex. 8 at 1.
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