Stephen K. Miyasato, M.D., Inc., DAB CR5433 (2019)

DECISION

Noridian Healthcare Solutions, Inc. (Noridian), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), revalidated the Medicare billing privileges of Stephen K. Miyasato, M.D., Inc. (Petitioner) effective June 15, 2017.  Petitioner requested a hearing before an administrative law judge to dispute Noridian’s effective date determination.  As explained herein, Noridian correctly determined that Petitioner’s Medicare billing privileges became effective June 15, 2017.  I therefore affirm CMS’s effective date determination.

I. Background

Petitioner is a physician who owns his practice, Stephen K. Miyasato, M.D., Inc.  CMS Exhibit (Ex.) 8 at 2; P. Br. at 2.  By letter dated November 11, 2016, Noridian notified Petitioner that he was required to revalidate his Medicare enrollment record by January 31, 2017.  CMS Ex. 1.  On January 13, 2017, Petitioner submitted form CMS-

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855-I1 through the Medicare Provider, Enrollment Chain, and Ownership System (PECOS).  CMS Ex. 2 at 1.  Noridian requested additional information from Petitioner regarding his business name and tax identification number on February 22, 2017.  CMS Ex. 3.  After Petitioner failed to provide the requested information, Noridian rejected Petitioner’s revalidation application and deactivated his billing privileges effective March 23, 2017.  CMS Ex. 4 at 1. 

On May 17, 2017, Noridian received a CMS-855B2 application from Petitioner, which it rejected because Petitioner did not provide corrections requested by Noridian on May 31, 2017.  CMS Ex. 8 at 2.  On June 15, 2017, Noridian received a Form CMS-855I to enroll Petitioner in the Medicare program and establish Medicare billing privileges.3   CMS Ex. 5; CMS Ex. 8 at 2.  Noridian subsequently approved this application and revalidated Petitioner’s billing privileges effective June 15, 2017.  CMS Ex. 6 at 2.

Petitioner requested reconsideration of the initial determination and asked Noridian to eliminate the lapse in his billing privileges from March 23, 2017 to June 14, 2017.  CMS Ex. 7 at 2.  Noridian issued a reconsidered determination on November 7, 2017 denying Petitioner’s request for an earlier effective date.  CMS Ex. 8 at 3.

Petitioner timely sought hearing before an administrative law judge.  I was designated to hear and decide this case and on December 15, 2017, issued an Acknowledgment and Pre-hearing Order (Pre-hearing Order) that required each party to file a pre-hearing exchange and supporting documents.  Pre-hearing Order ¶ 4. 

CMS filed its Pre-hearing Brief and Motion for Summary Judgment (CMS Br.), and eight proposed exhibits.  Because CMS’s exhibits were improperly labeled, I issued an order

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on January 16, 2018 requiring CMS to refile its pre-hearing exchange with properly labeled exhibits, which it did the next day.

Petitioner did not file his pre-hearing exchange by the date indicated in my Pre-hearing Order.  I therefore issued an Order to Show Cause (OSC) on February 27, 2018, giving Petitioner until March 9, 2018, to file his pre-hearing exchange and explain his failure to file timely.  OSC at 1-2.  Petitioner responded on March 1, 2018, claiming he had limited time and resources to devote to his appeal.  Petitioner also submitted one supporting document.4   In the absence of any objection from CMS, I find good cause to allow Petitioner to file out of time.  I also construe Petitioner’s response to my show-cause order and its accompanying exhibit to constitute his pre-hearing exchange. 

II. Decision on the Written Record and Admission of Exhibits

Neither party objected to the exhibits offered by the other.  I therefore admit CMS Exs. 1-8 and P. Ex. 1 into evidence.  Neither party offered written direct testimony of any witness as part of its pre-hearing exchange, meaning an in person hearing is not necessary in this matter.  Pre-Hearing Order ¶¶ 8-10; Civ. Remedies Div. P. §§ 16(b), 19(b).  Therefore, I will decide this case on the record, based on the parties’ written submissions and arguments.  Civ. Remedies Div. P. ¶ 19(d).  CMS’s motion for summary judgment is denied as moot.

III. Issue

The issue in this case is whether Noridian, acting on behalf of CMS, properly established June 15, 2017, as the effective date for the reactivation of Petitioner’s Medicare billing privileges.

IV. Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2); see also
Social Security Act (Act) § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

V. Discussion

A. Applicable Law

The Act authorizes the Secretary of Health and Human Services to promulgate regulations governing the enrollment process for providers and suppliers.  Act §§ 1102, 1866(j) (42 U.S.C. §§ 1302, 1395cc(j)).  A “supplier” like Petitioner is “a physician or

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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.  Act § 1861(d) (42 U.S.C. § 1395x(d)); see also Act § 1861(u) (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.  The regulations define “Enroll/Enrollment” as “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 provider or supplier successfully completes the enrollment process . . . CMS enrolls the provider or 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 a retrospective billing date that is 30 or 90 days prior to the effective date under 42 C.F.R. § 424.521(a)(1)-(2).

To maintain Medicare billing privileges, suppliers must revalidate their enrollment information at least every five years.  42 C.F.R. § 424.515.  However, CMS reserves the right to perform revalidations at any time.  42 C.F.R. § 424.515(d)-(e).  When CMS notifies suppliers that it is time to revalidate, the suppliers must submit the appropriate enrollment application, accurate information, and supporting documentation within 60 calendar days of CMS’s notification.  42 C.F.R. § 424.515(a)(2).  CMS can deactivate the Medicare billing privileges of an enrolled provider or supplier if the enrollee fails to comply with revalidation requirements.  42 C.F.R. § 424.540(a)(3).  When CMS deactivates suppliers’ 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).

B. Findings of Fact and Conclusions of Law5

1. Noridian received Dr. Miyasato’s Medicare enrollment application on June 15, 2017 and subsequently processed that application to approval, making that date the effective date of his enrollment.

The effective date for Medicare billing privileges for physicians, non-physician practitioners, and physician or non-physician practitioner organizations is the later of the

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“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).  The regulations allow suppliers to “retrospectively bill” Medicare, meaning CMS permits a supplier to bill Medicare for services occurring up to thirty days before the effective date of enrollment, if certain circumstances apply.  42 C.F.R § 424.521(a)(1).

Petitioner concedes that he did not complete his revalidation application with the requested information until June 2017.  P. Br. at 1.  Noridian indicates in its reconsidered determination that it received Petitioner’s Medicare enrollment application on June 15, 2017.  CMS Ex. 8 at 2.  Noridian subsequently approved that application.  CMS Br. at 2; CMS Ex. 8 at 2.  The plain language of the governing regulations requires me to find the effective date of Petitioner’s Medicare enrollment to be June 15, 2017.  42 C.F.R. §§ 424.520(d), 424.51(a)(1).

2. I have no authority to consider Dr. Miyasato’s equitable arguments.

The substance of Petitioner’s pre-hearing exchange is devoted to his argument that he was unable to complete the required Medicare enrollment application because of an issue with his business name and tax identification number, which had to be resolved with the IRS.  P. Br. at 1-2.  Petitioner acknowledges the delay in filing his application, but relies on the quality of treatment he provided to Medicare beneficiaries prior to his filing date to assert a different effective date of enrollment that would eliminate his billing gap.  P. Br. at 1-2.

I am sympathetic to Petitioner’s position, and recognize he believes an issue with the IRS resulted in the delay in filing his enrollment application.  However, my jurisdiction in this case is limited to review of CMS’s determination of the effective date of Petitioner’s enrollment application under § 424.520(d).  Here, CMS asserts June 15, 2017 to be Petitioner’s effective date of enrollment, as that is the date Noridian received an application from him that it was able to successfully approve.

Even if Petitioner’s delay in responding to Noridian’s requests for additional information occurred for reasons outside his control, I have no authority to provide equitable relief on that basis.  US Ultrasound, DAB No. 2302 at 8 (2010) (“[n]either the ALJ or the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).  As such, I must affirm CMS’s determination of Petitioner’s effective date of enrollment of June 15, 2017.

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3. CMS should consider exercising its discretion in favor of Dr. Miyasato by granting him retrospective billing.

I counsel CMS to consider providing the equitable relief to Petitioner that I cannot provide.  CMS recently effected a change in policy to allow suppliers who are re-enrolled following deactivation, like Petitioner, to receive up to 30 days of retrospective billing privileges.  MPIM, ch. 15, § 15.27.1.2 (rev. 865, eff. Mar. 12, 2019) (“Contractors shall grant retrospective billing privileges in accordance with Section 15.17(B) for reactivating provider and suppliers . . .[t]his includes providers that were deactivated for not responding to a revalidation request.”) (emphasis added).

Thus, any individual identically situated to Petitioner after March 12, 2019 would have 30 days of his or her billing gap eliminated.  To impose a different outcome on Petitioner following this conclusive and now universally applied change in policy, for no other reason than the timing of his reactivation, seems to me arbitrary and unjust.

IV. Conclusion

I affirm CMS’s determination that Petitioner’s effective date for Medicare billing privileges is June 15, 2017.

1. The Medicare enrollment application form for individual physicians and non-physician practitioners.  Ctrs. for Medicare & Medicaid Servs., Enrollment Applications, available at https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/MedicareProviderSupEnroll/EnrollmentApplications.html (last rev. Jan. 31, 2018).
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2. The Medicare enrollment application form for, among other entities, group practices.  Ctrs. for Medicare & Medicaid Servs., Enrollment Applications, available at https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/MedicareProviderSupEnroll/EnrollmentApplications.html (last rev. Jan. 31, 2018).
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3. Though it has no effect on the outcome in this matter, I reject CMS’s contention that Petitioner’s appeal is limited to his individual enrollment and not that of his practice.  CMS Br. at 2 n.1.  While Petitioner may have inadvertently omitted his group’s NPI in his request for hearing, it is clear he intended to file an appeal for both himself and his practice.  Req. for Hearing at 1 (indicating the petitioner name to be “Stephen K. Miyasato MD Inc”).  Moreover, Petitioner is the sole owner of his practice.  P. Br. at 2; CMS Ex. 8 at 2.  Therefore, the CMS-855I form Petitioner submitted was sufficient to reactivate both his individual and practice billing privileges.  Medicare Program Integrity Manual (MPIM) § 15.5.4.3(A).
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4. Document No. 10 in the official case file maintained in the DAB E-File system, which I refer to as P. Ex. 1.
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5. My findings of fact and conclusions of law appear as numbered headings in bold italic type.
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