Jeffrey Mossler, MD, DAB CR5470 (2019)

DECISION

Petitioner’s Medicare billing privileges were deactivated on November 2, 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 is May 9, 2018.

I. Background and Procedural History

On June 7, 2017, Wisconsin Physicians Service Insurance Corporation (WPS), a Medicare administrative contractor, sent a letter to Petitioner, a pathologist, requesting that he revalidate his individual Medicare enrollment record, to include his reassignments of benefits, no later than August 31, 2017.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 5, 7; see CMS Ex. 1 at 15.  WPS mailed the letter to two separate addresses.1   CMS Ex. 1 at 5, 7.  WPS instructed Petitioner to “update or confirm

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all the information in [his] record . . . .”  CMS Ex. 1 at 5, 7.  WPS cautioned Petitioner that if it did not receive his response by August 31, 2017, it “may stop [his] Medicare billing privileges.”  CMS Ex. 1 at 5, 7.  WPS also warned that Petitioner “will not be paid for services rendered during the period of deactivation” and deactivation “will cause a gap in [his] reimbursement.”  CMS Ex. 1 at 5, 7.  After Petitioner did not revalidate his enrollment prior to the August 31, 2017 deadline, WPS sent Petitioner a letter in which it explained that he “ha[d] not revalidated by the requested due date of August 31, 2017.”  CMS Ex. 1 at 9.  On November 3, 2017, WPS sent a letter informing Petitioner that, because he had not revalidated his enrollment, his billing privileges had been deactivated effective November 2, 2017.  CMS Ex. 1 at 11.

On May 9, 2018, WPS received Petitioner’s completed Form CMS-855I application for purposes of revalidation via the internet-based Provider, Enrollment, Chain and Ownership System (PECOS), at which time Petitioner continued to list the Indianapolis address as a contact person address.2   CMS Ex. 1 at 13-18.  On May 24, 2018, Petitioner submitted, via PECOS, an application to reassign his benefits to Ameripath, PC.  CMS Ex. 1 at 20-22.

In a letter dated June 5, 2018, WPS informed Petitioner that it had approved his revalidation application.  CMS Ex. 1 at 23-25.  WPS also explained that Petitioner would have a gap in his billing privileges due to his failure to timely revalidate his Medicare enrollment.3   CMS Ex. 1 at 24.  In a letter dated July 18, 2018, Petitioner disputed the gap

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in his reactivated billing privileges and claimed that he did not receive the revalidation request.  CMS Ex. 1 at 26.

WPS issued a reconsidered determination on August 27, 2018, wherein it maintained the same effective date of Petitioner’s reactivated billing privileges.  CMS Ex. 1 at 2; see CMS Br. at 2 n.1 (noting that WPS would issue a letter revising the effective date of Petitioner’s reactivated billing privileges).  WPS explained that it received the enrollment application for purposes of reactivation on May 9, 2018.  CMS Ex. 1 at 2.  The reconsidered determination stated that “[t]he contractor correctly deactivated the . . .  supplier’s Medicare billing privileges due to not receiving the requested information to revalidate [Petitioner’s] Medicare enrollment.”  CMS Ex. 1 at 2.

Petitioner, through counsel, submitted a request for an administrative law judge (ALJ) hearing that was received on September 28, 2018.  ALJ Keith W. Sickendick issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) on October 5, 2018, at which time he directed the parties to file their respective pre-hearing exchanges.4   CMS filed a pre-hearing brief and motion for summary judgment, along with three proposed exhibits (CMS Exs. 1-3).  Petitioner filed a response to CMS’s motion for summary judgment that incorporated a motion for a favorable decision on the record (P. Br.), along with four proposed exhibits (P. Exs. 1-4).  CMS filed a reply brief.  In the absence of any objections, I admit all submitted exhibits into the evidentiary record.

A hearing for the purpose of cross-examination is unnecessary because neither party has identified any proposed witnesses who would testify at an oral hearing.  Pre-Hearing Order, § III.D.  Further, Petitioner incorporates in its brief a motion for a decision on the record.  P. Br. at 1.  I consider the record in this case to be closed, and the matter is ready for a decision on the merits.5

II. Issue

Whether CMS had a legitimate basis to assign Petitioner a May 9, 2018 effective date for his reactivated billing privileges.

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III.   Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R § 498.3(b)(15); Victor Alvarez, M.D., DAB No. 2325 at 8-12 (2010); see also 42 U.S.C. § 1395cc(j)(8).

IV.  Findings of Fact, Conclusions of Law, and Analysis6

1. On June 7, 2017, WPS requested that Petitioner revalidate his individual Medicare enrollment record no later than August 31, 2017.

2. Petitioner did not respond to the revalidation request, and WPS deactivated Petitioner’s billing privileges effective November 2, 2017.

3. WPS received Petitioner’s completed enrollment application for purposes of revalidation and reactivation on May 9, 2018, and WPS ultimately processed that application to approval.

4. An effective date earlier than May 9, 2018, is not warranted for the reactivation of Petitioner’s Medicare enrollment and billing privileges.

As a pathologist, Petitioner is a “supplier” for purposes of the Medicare program.  See CMS Ex. 2 at 15; 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).

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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. 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), aff’d, Goffney v. Azar, 2:17-CV-8032 (C.D. Cal. Sept. 25, 2019); 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 7, 2017, WPS mailed a letter to Petitioner directing him to revalidate his Medicare enrollment record no later than August 31, 2017, and WPS warned that Petitioner’s failure to revalidate could result in deactivation of his Medicare billing privileges, with a resulting gap in reimbursement.  CMS Ex. 1 at 5, 7.  WPS thereafter deactivated Petitioner’s billing privileges on November 2, 2017, after Petitioner did not revalidate his individual enrollment record.  CMS Ex. 1 at 11-12.  In seeking reconsideration, Petitioner contended that he did not receive the revalidation request.   CMS Ex. 1 at 26.  However, in his brief, Petitioner does not affirmatively claim that he did not receive the7 revalidation request; rather, he makes the more nuanced allegation that “CMS has introduced no evidence to demonstrate that any letter had actually been sent, much less delivered,”8 and that it “cannot meet its prima facie burden by simply

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including a copy of the letter as an exhibit, without some evidence that the letter was actually sent.”  P. Br. at 5 (emphasis omitted).

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 . . . 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).  WPS deactivated Petitioner’s billing privileges based on his failure to comply with the revalidation request (CMS Ex. 1 at 11-12), and, on May 9, 2018, Petitioner filed the enrollment application for purposes of revalidation and reactivation that was processed to approval.  CMS Ex. 1 at 13-18, 20-22.  Based on the May 9, 2018 receipt date of the enrollment application that was processed to approval, the May 9, 2018 effective date for reactivated billing privileges is not erroneous.  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.”); 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.”); 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.”).

Petitioner raises a number of arguments challenging the deactivation of his billing privileges.  As previously discussed, Petitioner cannot challenge the deactivation of his billing privileges in this forum, and therefore, I need not address those arguments in detail.  Although Petitioner argues that “CMS must be prohibited from continuing to apply its sub-regulatory reactivation effective date [Medicare Program Integrity Manual]

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policy to create an arbitrary and capricious enrollment gap” (P. Br. at 24; see P. Br. at 11-13), I note that the DAB has rejected this argument, stating that “the loss of billing privileges while deactivated results from the plain language of the regulations, by which we are bound.”  Urology Grp., DAB No. 2860 at 14.  And although Petitioner argues that CMS’s policies result in “disparate treatment” for certain deactivated providers and suppliers (P. Br. at 14-16), the DAB “has long made clear that it is not empowered to refuse to enforce a valid statutory or regulatory requirement based on claims about other entities not subject to enforcement actions before it.”  Wills Eye Hosp., DAB No. 2743 at 36 (2016), aff’d sub nom Tr. Under Will of Wills v. Burwell, 306 F. Supp. 3d 684 (E.D. Pa. 2018).  And finally, to the extent Petitioner contends that CMS did not allow 30 days of retrospective billing privileges pursuant to 42 C.F.R. § 424.521, I do not have authority to grant retrospective billing privileges because such a matter is within the discretion of CMS and its contractors, and not an ALJ.  Decatur Health Imaging, LLC, DAB No. 2805 at 8-9 (2017) (“The [DAB] has held that it does not review CMS’s exercise of discretion to take other actions the regulations authorize relating to the enrollment of suppliers and providers.”); see Ark. Health Grp., DAB No. 2929 at 12 (explaining that the application of retrospective billing privileges “[may] run counter to section 424.555(b), which provides that ‘[n]o payment may be made for otherwise Medicare covered items or services furnished to a Medicare beneficiary’ when the supplier’s billing privileges have been deactivated.”).

The deactivation of Petitioner’s billing privileges on November 2, 2017, based on his failure to comply with a revalidation request, is not reviewable.  42 C.F.R. § 498.3(b) (listing the types of initial determinations that are subject to review); Ark. Health Grp., DAB No. 2929 at 12 (“Where, as here, the contractor deactivated Petitioner’s billing privileges, the issue for us (and the ALJ) is the effective date of reactivation.”); 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).  I can only review the effective date assigned for Petitioner’s reactivated billing privileges, and Petitioner does not argue, much less present evidence, that he submitted a completed application for purposes of reactivation prior to May 9, 2018.  Pursuant to 42 C.F.R. § 424.520(d), WPS had a legitimate basis to assign an effective date of May 9, 2018, for Petitioner’s reactivated billing privileges, which is based on the date of receipt of his application for purposes of revalidation.  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

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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 May 9, 2018 effective date of Petitioner’s reactivated billing privileges.

1. WPS mailed the request to Petitioner at separate addresses in Indianapolis, Indiana, and Chicago, Illinois.  CMS Ex. 1 at 5, 7.  Petitioner listed the Indianapolis address as both a “correspondence” and “contact person” address in a Form CMS-855I he submitted at the time of his previous revalidation in December 2012.  CMS Ex. 2 at 17, 34; see also CMS Ex. 2 at 13 (December 18, 2012 cover letter requesting that WPS mail all correspondence for Petitioner to the Indianapolis address).  While the basis for the Chicago address is unclear, I note that the Chicago address is listed on the taxpayer identification number form Petitioner submitted with the same application, and WPS had sent a previous revalidation request to that same address.  CMS Ex. 2 at 13, 40.
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2. The application record data report does not overtly indicate a receipt date of May 9, 2018.  CMS Ex. 1 at 13-18.  Rather, the initial and reconsidered determinations infer this receipt date.  CMS Ex. 1 at 1-4, 23-24.  Petitioner does not dispute that WPS received the enrollment application for purposes of revalidation on May 9, 2018.
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3. The copy of the initial determination letter submitted by CMS indicates a “gap in billing privileges from November 2, 2017 through May 9, 2018 for failing to timely submit [his] revalidation application.”  CMS Ex. 1 at 24.  CMS states in its brief that the “gap period should have ended one day earlier, on May 8, 2018,” and that “WPS will issue a letter to Petitioner noting that the gap period ended on May 8, 2018, and that [Petitioner’s] effective date of billing began on May 9, 2018.”  CMS Brief (Br.) at 2 n.1, 3 n.2.  Petitioner later acknowledged that it received this correspondence.  Petitioner Brief (P. Br.) at 3 n.1.
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4. This case was reassigned to me on March 8, 2019.
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5. Because the parties have not identified any witnesses and a hearing is unnecessary, I need not address whether summary judgment is appropriate.
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6. Findings of fact and conclusions of law are in italics and bold font.
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7. Petitioner also does not allege that he did not receive the second revalidation request or the November 3, 2017 letter informing him of his deactivation.
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8. In the absence of an actual allegation that Petitioner did not receive the revalidation request, I will not address Petitioner’s argument that CMS must nonetheless prove that it mailed the revalidation request.  The DAB has repeatedly determined that ALJs and the DAB are not required to address such arguments.  See Ark. Health Grp. d/b/a Baptist Health Family Clinic Lakewood, DAB No. 2929 at 12 (2019) (declining to consider an argument that a contractor’s notice letter was “lost in the mail” because “the issue for us (and the ALJ) is the effective date of reactivation”); Urology Grp., DAB No. 2860 at 7 (declining to consider claim that notice of deactivation of billing privileges was not received because “whether or not Petitioner was notified of the deactivation of its Medicare billing privileges is outside the [DAB]’s authority to review”).
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