Steven Noskow, MD, DAB CR5827 (2021)

DECISION

Petitioner, Steven Noskow, MD, is a physician, practicing in Maryland, who participates in the Medicare program as a supplier of services.  His Medicare billing privileges were deactivated, and he subsequently reenrolled in the program.  The Centers for Medicare & Medicaid Services (CMS) granted his application, with an effective date of July 30, 2018, resulting in a 10-day coverage gap, from July 20 through 29, 2018.

Petitioner’s enrollment was deactivated because he did not respond to the Medicare contractor’s request that he revalidate.  Petitioner maintains that he did not receive all of the letters directing him to do so.  I have no authority to review the deactivation. 

Petitioner also asserts that he submitted his revalidation application – by means of CMS’s electronic filing system – on July 24, 2018, and, in fact, the evidence establishes that he did.  Because he filed his subsequently-approved enrollment application on July 24, 2018, I find that July 24 is the correct effective date for his reenrollment.  

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Background

In a notice letter, dated August 29, 2018, the Medicare contractor, Novitas Solutions, advised Petitioner that it approved his revalidated Medicare enrollment application with a gap in billing privileges from July 20 through 29, 2018.  CMS Ex. 7.  Petitioner requested reconsideration, complaining that his office “did not receive any correspondence to complete the re-validation process.”  CMS Ex. 8 at 7.  

In a reconsidered determination, dated December 20, 2018, and an amended reconsidered determination, dated January 10, 2019, the contractor affirmed the initial determination.  CMS Ex. 9; P. Ex. 6.1   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 3-4, 5 (¶¶ 4(c)(iv), 8) (February 28, 2019).  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 submits a response (P. Br.) with six exhibits (P. Exs. 1-6).  In the absence of any objections, I admit into evidence CMS Exs. 1-10 and P. Exs. 1-6.  See Acknowledgment and Pre-hearing Order at 5 (¶ 7).

Discussion

On July 24, 2018, Petitioner filed his subsequently-approved application to reactivate his billing privileges, and July 24, 2018 is therefore the effective date of his reenrollment.  42 C.F.R. § 424.520(d).2

Enrollment.  Petitioner Noskow 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 prospective supplier must

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enroll in the program.  42 C.F.R. § 424.505; see Act § 1834(j).  “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-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 his billing privileges, a supplier must, at least every five years, resubmit and recertify the accuracy of his 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 his enrollment information.  42 C.F.R. § 424.515(d)-(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 his enrollment information, CMS may deactivate his 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.  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, No. CV 17-8032 MRW (C.D. Cal. Sept. 25, 2019).

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

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Petitioner’s deactivation.  Here, in a notice letter, dated April 10, 2018, the contractor advised Petitioner to revalidate his Medicare enrollment by updating or confirming the information in his record.  The letter directed him to revalidate, no later than June 30, 2018.  The letter warned that the contractor could deactivate Petitioner’s Medicare enrollment if he did not respond.  CMS Ex. 1.  The contractor sent the notice to one of the addresses listed in Petitioner’s Medicare enrollment file.  Compare CMS Ex. 1 with CMS Ex. 2 at 2, 3. 

The postal service returned the notice, stamped undeliverable.  CMS Ex. 10 at 5.  On May 16, 2018, the contractor sent a follow-up revalidation notice to Petitioner’s practice location.  The letter referred to the April 10, 2018 notice and warned that failing to submit a complete enrollment application and all supporting documentation within 60 calendar days of the original notice could result in Petitioner’s Medicare billing privileges being deactivated.  CMS Ex. 3 at 2. 

Petitioner did not respond.  He concedes that the May 16 notice was validly addressed but maintains that he did not receive it.  P. Br. at 1. 

The contractor sent another notice, dated July 6, 2018, advising Petitioner that he had not responded to the revalidation requests and was still required to update or confirm his enrollment information.  The notice warned that Petitioner would not be paid for services rendered during a period of deactivation.  The notice also explained that he could revalidate his Medicare enrollment record through PECOS or by submitting an updated paper application (form CMS-855).  CMS Ex. 4 at 6-7.  The contractor sent this notice to a post office box that was listed in Petitioner’s Medicare enrollment file as Petitioner’s correspondence address.  Compare CMS Ex. 4 at 6 with CMS Ex. 6 at 4.  Petitioner concedes that he received this notice.  P. Br. at 2. 

In a notice dated July 20, 2018, the contractor advised Petitioner that his billing privileges were stopped, effective July 20, 2018, because he had not revalidated his enrollment record or had not responded to the contractor’s request for more information.  The notice instructed Petitioner to revalidate his enrollment record through PECOS or to submit an updated paper enrollment application, form CMS-855.  CMS Ex. 5. 

Petitioner challenges the deactivation of his enrollment, complaining that he did not receive the earlier notice letters.  Whatever the merits of his claim, I simply have no authority to review the deactivation nor to grant him any relief based on purported irregularities.  Sokoloff, DAB No. 2972 at 6; Ark. Health Grp., DAB No. 2929 at 7-9, and cases cited therein.

Petitioner’s reenrollment.  On July 24, 2018, Petitioner filed a Medicare enrollment application via PECOS, which the contractor subsequently approved.  CMS Ex. 6.  Thus, pursuant to section 424.520(d), the date Petitioner filed his subsequently-approved

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enrollment application – July 24, 2018 – is the correct effective date of his reenrollment.  Sokoloff, DAB No. 2972 at 6; Urology Grp., DAB No. 2860 at 7; Goffney, DAB No. 2763 at 7.

For reasons that it does not explain, CMS maintains that Petitioner filed his reenrollment application on July 30, 2018.  CMS lists as an “undisputed material fact” that on July 30, 2018, the contractor “received Petitioner’s web CMS-855I revalidation application.”  CMS Br. at 3.  There are two enormous problems with CMS’s assertion:  

1. Petitioner obviously disputes that he filed the application on July 30; he maintains that he “submitted the re-validation application via PECOS and . . . signed the certification forms on 7/24/18.”  P. Br. at 2. 
2. CMS relies on CMS Ex. 6, which is the PECOS application data report.  Under the section captioned “Submission History for the Application,” it says “07/24/2018 RECEIVED.”  CMS Ex. 6 at 3.  CMS’s Medicare enrollment summary report confirms that the contractor received the application on July 24, 2018.  CMS Ex. 2 at 4.  CMS points to no evidence supporting a July 30 date. 

Obviously, it is not my job to figure out how CMS arrived at the July 30 date, especially since the exhibits it relies on so readily establish that July 24 was the date of receipt.  Nevertheless, both CMS Ex. 6 and Petitioner’s response suggest that the July 30 date may be related to the date the contractor received Petitioner’s signed certification statement.  The PECOS form indicates that the application was received on July 24 and that “paper signatures [were] expected.”  CMS Ex. 6 at 3.  Petitioner signed his statement on July 24, 2018, and sent it to the contractor.  P. Br. at 2; P. Ex. 1 at 6. 

Prior to October 1, 2018, the Medicare Program Integrity Manual (MPIM) provided that, for PECOS applications, “[t]he date of filing . . . is the date that the contractor received an electronic version of the enrollment application and a signed certification statement submitted via paper or electronically.”  MPIM ¶ 15.17A (Rev. 582, Issued:  03-04-15; Effective 05-28-15).  Manual provisions do not bind me; regulations do.4   The regulation is unambiguous:  the effective date is the date the subsequently-approved enrollment application was filed; it does not require that the application be complete at the time of filing. 

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In Tri-Valley Family Medicine, Inc., DAB No. 2358 at 5 (2010), the Departmental Appeals Board settled any question about the effective date of a PECOS-filed application.  The Board rejected the argument that the contractor’s receipt of a signed, fully complete application triggers the effective date.  The Board noted that, under the regulations, applicants are “given an opportunity to cure any deficiencies or supply any missing documentation before an application will be rejected.”  Tri-Valley, DAB No. 2358 at 5, citing 42 C.F.R. § 424.525.  CMS may deny an enrollment application if the supplier does not comply with Medicare enrollment requirements, “which include the requirement for a signature on the certification statement,” and does not submit a corrective action plan.  Tri-Valley, DAB No. 2358 at 5-6.  Thus, the Board reasoned, if an application lacks necessary signatures, the regulations give the Medicare contractor two options:  1) treat the missing signature like any other missing information and request it within the regulatory deadline; or 2) treat the failure as noncompliance and deny the application.  Tri-Valley, DAB No. 2358 at 6.  The Board concluded that nothing in the regulations or the language of the preamble indicates that the effective date should be determined by the submission of a complete application:  “Instead, the regulation refers to an application that is ‘subsequently approved’ by the contractor.  It does not require that the application be ‘approvable’ as initially submitted.”  Tri-Valley, DAB No. 2358 at 7.

Although the Board later departed from some aspects of the Tri-Valley decision, it reaffirmed Tri-Valley’s conclusion that “while the contractor may require and request additional information to complete the application, the effective date will relate back to the date of filing so long as that application continues to be processed to a decision on whether to approve it.”  Karthik Ramaswamy, M.D., DAB No. 2563 at 5 (2014) (en banc), aff’d, Ramaswamy v. Burwell, 83 F. Supp. 3d 846, 854 (E.D. Mo. 2015).

Conclusion

Because Petitioner filed his subsequently-approved reenrollment application on July 24, 2018, July 24, 2018 is the proper effective date for his Medicare reenrollment.

1. The December 20 determination states that the contractor received Petitioner’s application on July 30, 2018, and names July 30, as the effective date.  CMS Ex. 9 at 2.  The determination says that August 29 was the date of the contractor’s approval letter.  I’m not sure why the contractor sent the amended determination since it doesn’t seem to have changed anything.  CMS Ex. 7.  CMS cites the December 20 letter only and does not mention the amended determination.  CMS Br. at 3.
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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. Shortly after Petitioner reenrolled, CMS changed its instructions.  The manual now provides that the “date of filing for paper Form CMS-855 applications is the date on which the contractor received the application regardless of whether the application was submitted via paper or Internet-based PECOS.”  MPIM ¶ 15.17A (Rev. 824, Issued:  09-05-18; Effective 10-01-18).  In any event, the Supreme Court has rejected agency efforts to change reimbursement rules through sub-regulatory guidance.  Azar v. Allina Health Services, 139 S. Ct. 1804 (2019).
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