Hussam ElGohary, MD, APC, DAB CR5665 (2020)

DECISION

Petitioner, Hussam ElGohary, MD, is a California physician.  He is the sole owner of his medical practice, Hussam ElGohary, MD, APC.1   After his Medicare billing privileges were deactivated, the physician applied to reenroll in the program.  The Centers for Medicare & Medicaid Services (CMS) granted his application, effective June 6, 2017, later revised to June 5, resulting in a coverage lapse from May 17 through June 4, 2017.  Petitioner now challenges that effective date and asks that the lapse in coverage be eliminated.

Because Petitioner ElGohary filed his subsequently-approved enrollment application on June 5, 2017, I find that June 5 is the earliest possible effective date for his enrollment.  Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 (2019); Urology Grp. of NJ, LLC, DAB No. 2860 (2018); Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017), aff’d sub nom. Goffney v. Azar, No. CV 17-8032 MRW (C.D. Cal. Sept. 25, 2019).

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Background

In a notice dated July 26, 2017, the Medicare contractor, Noridian Healthcare Solutions, advised Petitioner that it approved his revalidated Medicare enrollment, although he was subject to a lapse in coverage from May 17 through June 5, 2017.  CMS Ex. 7.  Petitioner requested reconsideration.  See CMS Ex. 8.

In a reconsidered determination, dated December 6, 2017, the contractor changed the effective date from June 6 to June 5, with a coverage lapse from May 17 through June 4, 2017.  CMS Ex. 9.  Petitioner appealed. 

CMS moves for summary judgment.  However, because neither party proposes any witnesses, an in-person hearing would serve no purpose.  See Acknowledgment and Pre-hearing Order at 3, 5 (¶¶ 4, 10) (February 13, 2018).  I may therefore decide this case based on the written record, without considering whether the standards for summary judgment are satisfied. 

CMS submits its motion and brief (CMS Br.) with ten exhibits (CMS Exs. 1-10).  Petitioner submitted a letter (P.Br.) without any exhibits.  In the absence of any objections, I admit into evidence CMS Exs. 1-10.  See Acknowledgment and Pre-hearing Order at 5 (¶ 7).

Discussion

Petitioner filed his subsequently-approved enrollment application on June 5, 2017, and his Medicare reactivated enrollment can be no earlier than that date.  42 C.F.R. § 424.520(d).2

Enrollment.  Petitioner ElGohary participates in the Medicare program as a “supplier” of services.  Social Security Act § 1861(d); 42 C.F.R. § 498.2.  To receive Medicare payments for the services furnished to program beneficiaries, a 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. § 424.502.3   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.  For a physician, the effective date for billing privileges “is the later of the date of filing” a subsequently-approved enrollment application or “the date that the supplier first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d) (emphasis added).

Revalidation and 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 its 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.  Sokoloff, DAB No. 2972 at 6-7; Urology Grp., DAB No. 2860 at 7; Goffney, DAB No. 2763 at 7.

I have no authority to review a deactivation.  Sokoloff, DAB No. 2972 at 6; Ark. Health Grp., DAB No. 2929 at 7-9 (2019). 

Petitioner’s deactivation and reenrollment.  In a notice letter, dated January 13, 2017, the contractor directed Petitioner to revalidate his Medicare enrollment by no later than March 31, 2017, updating or confirming the information in his record.  The letter directed Petitioner to the PECOS website and explained that a supplier could revalidate through the PECOS system or by mailing to the contractor a completed CMS-855 Medicare enrollment application.  The letter warned that, if Petitioner failed to respond to the notice, his Medicare enrollment could be deactivated; the letter explained that, during the period of deactivation, Medicare would not pay for the services rendered.  CMS Ex. 1.

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On March 29, 2017, Petitioner filed his revalidation application (Form CMS-855I).  CMS Ex. 2. 

In correspondence, dated April 12, 2017, the contractor acknowledged that it received Petitioner’s enrollment application; the letter directed Petitioner to revise his submissions and submit additional supporting documentation.  It warned that, if Petitioner failed to respond timely, his application could be rejected.  CMS Ex. 3.

The parties agree that Petitioner submitted to the contractor at least some corrections; however, the contractor determined that his submissions were inadequate, and, in an email and letter, dated May 17, 2017, advised Petitioner that it rejected his application.  CMS Exs. 4, 5.  I have no authority to review a rejected application.  Wishon Radiological Med. Grp., Inc., DAB No. 2941 at 6-7 (2019); James Shepard, M.D., DAB No. 2793 at 8 (2017).

On June 5, 2017, Petitioner ElGohary filed his Medicare reenrollment application, which the contractor subsequently approved.4   CMS Ex. 6.  Thus, pursuant to section 424.520(d), the date Petitioner filed his subsequently-approved enrollment application – June 5, 2017 – is the correct effective date of enrollment.  Sokoloff, DAB No. 2972 at 6-7; Urology Grp., DAB No. 2860 at 7-9; Goffney, DAB No. 2763 at 7.

I have no authority to grant Petitioner an earlier effective date based on any equitable or policy arguments.  Sokoloff, DAB No. 2972 at 9.

Conclusion

Because Petitioner ElGohary filed his subsequently-approved reenrollment application on June 5, 2017, CMS properly granted his Medicare reenrollment effective that date.

1. Although this matter has been captioned as the practice’s appeal, in fact, Petitioner ElGohary appeals the effective date of his individual reactivation.  CMS Exs. 1, 5, 9; see CMS Br. at 2 n.1.
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2. I make this one finding of fact/conclusion of law.
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3. CMS’s electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).
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4. Medicare contractors stamp paper applications with a “Julian date stamp,” which counts the days of the year consecutively.  Here, the first two digits stamped on the application (upper left corner) indicate the year – 2017.  The next three digits indicate the date – the 156^th day of 2017, or June 5, 2017.  CMS Ex. 6 at 1.
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