William S. Strauss, M.D., DAB CR5411 (2019)

DECISION

Petitioner, William S. Strauss, M.D., is a physician and general surgeon practicing in Salem, Oregon.  After his Medicare billing privileges were deactivated, he applied to reenroll in the program.  The Centers for Medicare & Medicaid Services (CMS) granted his application, effective September 20, 2016.  Petitioner now challenges that effective date. 

Because Petitioner filed his subsequently-approved enrollment application on September 20, 2016, I find that September 20 is the correct effective date of his enrollment.  Urology Grp. of NJ, LLC, DAB No. 2860 (2018); Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017).

Background

In a letter dated November 10, 2016, the Medicare contractor, Noridian Healthcare Solutions, advised Petitioner Strauss that, following a two-month lapse in coverage (July 21 – September 19, 2016), it reactivated his Medicare enrollment effective September 20.  CMS Ex. 12.  Petitioner sought reconsideration, asking that the start of his reactivation be

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moved to July 21.  CMS Ex. 14.  In a reconsidered determination, dated February 9, 2017, the contractor denied Petitioner an earlier reactivation date.  CMS Ex. 13. 

Petitioner appealed. 

Although CMS has moved for summary judgment, I find that this matter may be decided on the written record, without considering whether the standards for summary judgment are satisfied.  In my initial order, I instructed the parties to list their proposed witnesses (if any) and to submit their written direct testimony.  Acknowledgment and Pre-hearing Order at 3, 5 (¶¶ 4, 8) (March 9, 2017).  I also directed each party to state, affirmatively, whether it intended to cross-examine any proposed witness.  Order at 5 (¶ 9).  An in‑person hearing is necessary “only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine.”  Order at 5 (¶ 10).  CMS listed one witness and provided her written direct testimony.  CMS Ex. 17 (Geyer Decl.).  Petitioner has not asked to cross-examine CMS’s witness.  For his part, Petitioner listed no witness, although he proffered his own testimony in the form of a signed letter.  P. Ex. 1.  CMS did not object to the letter nor ask to cross-examine Petitioner Strauss.  An in-person hearing would therefore serve no purpose, and I may decide the case based on the written record. 

With its motion and brief, CMS submits 17 exhibits.  Petitioner submits three exhibits.  In the absence of any objections, I admit CMS Exs. 1-17 and P. Exs. 1-3.   

Discussion

Petitioner filed his subsequently-approved application on September 20, 2016, and his Medicare enrollment can be no earlier than that date.  42 C.F.R. § 424.520(d).1

Enrollment.  Petitioner Strauss participates in the Medicare program as a “supplier” of services.  Social Security Act § 1861(d); 42 C.F.R. § 498.3.  To receive Medicare payments for the services it furnishes to program beneficiaries, a prospective supplier must enroll in the program.  42 C.F.R. § 424.505.  “Enrollment” is the process by which CMS and its contractors: 1) identify the prospective supplier; 2) validate the supplier’s eligibility to provide items or services to Medicare beneficiaries; 3) identify and confirm a supplier’s owners and practice location; and 4) grant the supplier Medicare billing privileges. 42 C.F.R. § 424.502.  

To enroll, a prospective supplier must complete and submit an enrollment application.  42 C.F.R. §§ 424.510(d)(1), 424.515(a).  An enrollment application is either a CMS-

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approved paper application or an electronic process approved by the Office of Management and Budget.  42 C.F.R. § 424.502.2   When CMS determines that a prospective supplier meets the applicable enrollment requirements, it grants Medicare billing privileges, which means that the supplier can submit claims and receive payments from Medicare for covered services provided to program beneficiaries.  The effective date for its billing privileges “is the later of the date of filing” a subsequently-approved enrollment application or “the date [an enrolled physician] first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d) (emphasis added).

Deactivation.  To maintain its billing privileges, a supplier must, at least every five years, resubmit and recertify the accuracy of its enrollment information, a process referred to as “revalidation.”  42 C.F.R. § 424.515.  In addition to periodic revalidations, CMS may, at other times and for its own reasons, ask a supplier to recertify the accuracy of its enrollment information.  42 C.F.R. § 424.515(d) and (e).  Within 60 days of receiving CMS’s notice to recertify, the supplier must submit an appropriate enrollment application with complete and accurate information and supporting documentation.  42 C.F.R. § 424.515(a)(2).

If, within 90 days from receipt of CMS’s notice, the supplier does not furnish complete and accurate information and all supporting documentation or does not resubmit and certify the accuracy of its enrollment information, CMS may deactivate its billing privileges, and no Medicare payments will be made.  42 C.F.R. §§ 424.540(a)(3); 424.555(b).  To reactivate his billing privileges, the supplier must complete and submit a new enrollment application.  42 C.F.R. § 424.540(b)(1).  It is settled that, following deactivation, section 424.520(d) governs the effective date of reenrollment.  Urology Grp., DAB No. 2860 at 7; Goffney, DAB No. 2763 at 7.

Petitioner’s deactivation and reenrollment.  In a notice letter dated April 16, 2016, the contractor directed Petitioner to revalidate his Medicare enrollment by updating or confirming the information in his record.  The letter directed him to the PECOS website and explained that he could revalidate through the PECOS system or by mailing to the contractor a completed CMS-855 Medicare enrollment application.  CMS Ex. 1.  The notice emphasized that he had to revalidate by June 30, 2016, or risk his practice’s Medicare billing privileges being deactivated.  It warned that, during the period of deactivation, Medicare would not pay for the services he rendered.  CMS Ex. 1. 

Petitioner responded by submitting a revalidation application, CMS Form 855I, by mail, post-marked May 31, 2016.  CMS Ex. 2.  In an e-mail dated June 21, 2016, a contractor’s representative acknowledged receiving the application but asked for additional

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information regarding his “ELECTRONIC FUNDS TRANSFER AUTHORIZATION AGREEMENT.”  CMS Ex. 3 at 2.  The letter warned:  “Consistent with regulations found at 42 CFR 424.525, we may reject your application(s) if you do not furnish complete information within 30 calendar days of the initial request; and “Failure to respond in a timely matter [sic] will result in your Medicare application being rejected if you do not furnish the complete information requested.”  CMS Ex. 3 at 1, 3 (emphases in original). 

Although Petitioner Strauss responded by submitting an electronic funds transfer agreement, some necessary information (the supplier’s primary practice address) was missing.  CMS Ex. 4 at 6.  In an e-mail dated July 11, the contractor’s representative reminded Petitioner to submit, no later than July 18, the primary practice address, along with a clean signature and date.  She warned that Petitioner’s application could be rejected if he failed to do so.  CMS Ex. 5. 

Petitioner responded on July 17 by providing two primary practice locations (not acceptable – there can be only one primary practice location).  Although he also sent a new signature and date, he did so on a CMS Form 855I; he did not provide a clean signature and date on the electronic transfer agreement.  CMS Ex. 6.  The submission was not acceptable to the contractor, and the contractor stopped his billing privileges, ostensibly effective July 21, 2016.  CMS Ex. 7. 

CMS subsequently determined that the July 21 date was incorrect.  The contractor generated Petitioner’s notice letter on July 25, 2016 (although CMS’s exhibit reflects the date of its printing – April 3, 2017).  CMS Ex. 7; P. Ex. 2; see CMS Ex. 17 at 2 (Geyer Decl. ¶¶ 4, 5).  According to CMS, the date should have been “the date the application was rejected and the rejection letter was issued” – July 25, 2016.  CMS Ex. 15; CMS Ex. 17 at 2 (Geyer Decl. ¶ 6). 

In fact, the contractor did not “issue the letter” on July 25, or at all.  CMS concedes that it has no proof that the letter was ever mailed.  CMS Ex. 17 at 2 (Geyer Decl. ¶ 4).  Petitioner Strauss did not receive it and, understandably, feels much aggrieved because he did not know until later that he had to reapply, and he continued to provide services for which he will not be paid.  P. Exs. 1, 3.  Unfortunately, troubling as this is, I have no authority to rectify this error nor to review any other aspect of the contractor’s determination to deactivate Petitioner’s enrollment.  Ark. Health Grp., DAB No. 2929 at 7-9 (2019) and cases cited therein.3

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On about September 6, 2016, Petitioner Strauss learned that his billing privileges had been terminated.  P. Ex. 1.  On September 20, 2016, the contractor received his reenrollment application, which the contractor subsequently approved.  See CMS Ex. 8 at 22; CMS Ex. 12.  Thus, pursuant to section 424.520(d), the date Petitioner filed his subsequently-approved enrollment application – September 20, 2016 – is the correct effective date of enrollment.  Urology Grp., DAB No. 2860 at 7-9; Goffney, DAB No. 2763 at 7.

Conclusion

Because Petitioner filed his subsequently-approved reenrollment application on September 20, 2016, CMS properly granted his Medicare reenrollment effective that date. 

1.  I make this one finding of fact/conclusion of law.
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2.  CMS’s electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).
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3.  Nothing precludes CMS from recognizing the contractor error and making amends.  Although I lack the authority to correct the agency’s errors, I am not necessarily the final authority, and federal courts have been known to take a dim view of an agency’s failing to provide adequate notice of its actions.  See 42 C.F.R. §§ 424.545; 498.3(b)(15); 498.5(f).
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