Sports Medicine Rehabilitation Associates, By Casiano Flaviano, MD, DAB CR5862 (2021)

DECISION

The effective date of reactivation of Petitioner, Sports Medicine Rehabilitation Associates’ Medicare billing privileges is January 23, 2020, with a period for retrospective billing beginning December 24, 2019. 

I.  Background and Findings of Undisputed Facts

On August 12, 2020, Petitioner requested administrative law judge (ALJ) review of the June 12, 2020 reconsidered determination of Noridian Healthcare Solutions, a Medicare administrative contractor (MAC).  Request for Hearing (RFH).  The reconsidered determination upheld an initial determination by the MAC that reinstated Petitioner’s

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billing privileges effective December 24, 2019.  The reconsidered determination concluded that the effective date of reactivation of Petitioner’s billing privileges was January 23, 2020, and the first day of the 30-day period for retrospective billing was December 24, 2019.  CMS Ex. 1 at 1-8.  The reconsidered determination resulted in a gap in Petitioner’s billing privileges from November 1 through December 23, 2019 (gap period).  Petitioner complains that the gap period caused Petitioner not to be paid for claims for services provided to Medicare beneficiaries during the gap period, resulting in financial hardship for Petitioner.  RFH.  Petitioner argues that the effective date of reactivation of billing privileges should be August 5, 2019, the date a revalidation application was received by the MAC that was ultimately rejected by the MAC.  Casiano Flaviano, MD’s Pre‑Hearing Brief, Response to Motion for Summary Judgment, and Motion for Summary Judgment (P. Br.) at 2, 4-5.

CMS filed a motion for summary judgment (CMS Br.) with CMS Ex. 1 on September 14, 2020.  Petitioner filed a brief in opposition to the motion for summary judgment and a cross-motion for summary judgment on October 13, 2020, with no exhibits.  Petitioner has not objected to my consideration of CMS Ex. 1, which is admitted and considered as evidence.

The material facts are not disputed.  Petitioner was enrolled in Medicare and continued to be enrolled throughout the gap period.  CMS Br. at 2-3; CMS Ex. 1 at 2, 92. 

On June 28, 2019, the MAC notified Petitioner that it was required to revalidate its enrollment by September 30, 2019.  The MAC informed Petitioner that failure to revalidate could result in Petitioner’s billing privileges being deactivated (stopped).  CMS Ex. 1 at 11-14, 138-39.  Petitioner filed a revalidation application that was received by the MAC on August 5, 2019.  CMS Ex. 1 at 94-100, 126-32. 

CMS did not offer as evidence a notice from the MAC that Petitioner’s application received by the MAC on August 5, 2019, was rejected by the MAC.  However, there is no dispute that the application was rejected on November 1, 2019.  CMS Ex. 1 at 2-3, 6; P. Br. at 2-5. 

On November 1, 2019, the MAC notified Petitioner that its billing privileges were stopped (deactivated) effective that date, because Petitioner did not revalidate its enrollment.  The MAC did not advise Petitioner of the right to submit a rebuttal to the deactivation action as provided by 42 C.F.R. § 424.545(b).  CMS Ex. 1 at 92-93.

Petitioner submitted a revalidation enrollment application that was received by the MAC on January 23, 2020.  CMS Ex. 1 at 85-91. 

The MAC notified Petitioner on March 12, 2020, that its revalidation enrollment application was approved effective December 24, 2019.  However, the MAC advised

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Petitioner that there was a gap in Petitioner’s billing privileges from November 1 through December 23, 2019, and that claims for services to Medicare beneficiaries during that period would not be paid.  The MAC explained that the gap occurred because Petitioner failed to respond to development requests related to the revalidation.  CMS Ex. 1 at 18‑20. 

II.  Issues, Conclusions of Law, and Analysis

A.  Issues

Whether I have jurisdiction to review the reconsidered determination by CMS or a MAC of the effective date of reactivation of Medicare billing privileges, i.e., the right to file claims with and to receive payment from Medicare; and

The effective date of reactivation of Petitioner’s billing privileges.

B.  Conclusions of Law and Analysis

My conclusions of law are set forth in bold text followed by my analysis applying law and policy to the undisputed facts.

1.  There is authority for ALJ review in this case, but it is limited to the effective date of reactivation of Petitioner’s billing privileges, i.e., the date of reactivation of Petitioner’s right to submit claims to and receive payment from Medicare for care and services delivered to Medicare-eligible beneficiaries.

2.  Petitioner has no right to ALJ review of the determination of the MAC or CMS to deactivate its billing privileges.  42 C.F.R. § 424.545(b).

3.  There is no right to ALJ review of the rejection of an enrollment application.  42 C.F.R. § 424.525(d).

This case involves a gap in Petitioner’s billing privileges that was created when the MAC deactivated Petitioner’s billing privileges, and then reactivated Petitioner’s billing privileges on a later date.  Petitioner’s real grievance is that CMS and the MAC declined to pay Petitioner for services rendered to Medicare-eligible beneficiaries during the gap period, even though there is no dispute that Petitioner continued to be enrolled in Medicare during the gap period.  RFH.

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For the following reasons, I conclude Petitioner has no right to ALJ review of the MAC’s determination to reject Petitioner’s revalidation application and deactivate its billing privileges.  Petitioner also has no right to ALJ review in this forum of the denial of payment of its claims during the gap period.  Petitioner only has a right to ALJ review of the reconsidered determination of the effective date of the reactivation of billing privileges.

The Secretary of the Department of Health & Human Services (the Secretary) promulgated regulations at 42 C.F.R. pt. 4242 that establish a process for enrolling providers and suppliers in Medicare.  Pursuant to the regulations, CMS or the MAC may deactivate the billing privileges of an enrolled provider or supplier for failure to do any of the following: 

1.  Submit a claim for 12 consecutive months;

2.  Report a change in enrollment information within 90 calendar days of the date of the change, except a change in ownership or control, which must be reported within 30 calendar days; and

3.  Give CMS or the MAC complete and accurate information and all supporting documents within 90 calendar days of a request from CMS or the MAC to submit an enrollment application or certify the accuracy of its enrollment information.

42 C.F.R. § 424.540(a).  A provider or supplier deactivated for failure to submit a claim for 12 consecutive months may reactivate billing privileges by recertifying that all information on file with CMS is correct; providing any missing information; meeting all Medicare enrollment requirements; and being prepared to submit a valid claim.  42 C.F.R. § 424.540(b)(1)-(2).  When deactivation is based on failure to timely notify CMS or the MAC of a change of information or to timely respond to a request for information, a provider or supplier must complete and submit a new enrollment application to reactivate its billing privileges, unless CMS or the MAC permits the provider or supplier to recertify that its enrollment information on file is correct.  42 C.F.R. § 424.540(b)(1)-(2).  Deactivation of Medicare billing privileges is an action to

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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).

Under 42 C.F.R. pt. 498, there is no right to ALJ review of a CMS or MAC determination to deactivate a provider’s or supplier’s billing privileges.  The regulations specifically provide that:  there are no appeal rights related to the rejection of an enrollment application; and the process due for deactivation of billing privileges is the right to file a rebuttal.3   42 C.F.R. §§ 424.525(d), 424.545(b).  The Departmental Appeals Board (Board) has concluded in numerous cases that ALJs and the Board are not authorized to review the deactivation of billing privileges; the rejection of enrollment applications; or equitable arguments for an earlier effective date for billing privileges.  Chaplin Liu, M.D., DAB No. 2976 at 1, 3, 6-8 (2019); Wishon Radiological Med. Grp., Inc., DAB No. 2941 (2019); Willie Goffney, Jr., M.D., DAB No. 2763 at 4-6 (2017), aff’d, Goffney v. Azar, No. 2:17‑cv‑8032 (C.D. Cal. Sept. 25, 2019) appeal docketed, No. 19-56-56368 (9th Cir. Nov. 25, 2019); Arkady B. Stern, M.D., DAB No. 2417 at 3 n.4 (2011); Andrew J. Elliott, M.D., DAB No. 2334 at 4 n.4 (2010).  While the Board has determined to extend review to the effective dates of billing privileges as discussed hereafter, ALJs and the Board are required to follow the regulations including 42 C.F.R. §§ 424.525(d) and 424.545(b).  Sentinel Med. Labs., Inc., DAB No. 1762 at 9 (2001), aff’d sub nom., Teitelbaum v. Health Care Fin. Admin., 32 F. App’x 865 (9th Cir. 2002).  I conclude Petitioner has no right to ALJ review of the MAC’s determination to reject the application received from Petitioner on August 5, 2019, or the determination to deactivate Petitioner’s billing privileges.  

Petitioner argues that I should review the deactivation determination and the underlying rejection of his application that was received by the MAC on August 5, 2019.  P. Br.  Petitioner argues that the rejection of his August 5, 2019 application was in error as he timely submitted all information requested by the MAC.  Petitioner further reasons that because the rejection of Petitioner’s August 5, 2019 was in error, there was no basis for deactivation of Petitioner’s billing privileges.  Petitioner argues that, because Petitioner complied with all MAC requests, I should exercise equitable powers and fashion relief for Petitioner by adopting August 5, 2019, as the effective date of his billing privileges.  Petitioner reasons that absent review by an ALJ and the Board, CMS and the MACs have virtually unfettered discretion to reject an enrollment application for any reason or no reason at all.  P. Br. at 3-5.  However, as Petitioner recognizes, CMS and MAC authority to reject an application is limited to the three reasons specified by 42 C.F.R. § 424.525(a).

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Similarly, deactivation of billing privileges is limited to the three reasons specified by 42 C.F.R. § 424.540(a).  Therefore, Petitioner is incorrect that CMS and MACs have unfettered discretion to reject applications and deactivate billing privileges.  CMS and MAC authority is limited as provided in the regulations.  However, the Secretary has provided by regulation that the rejection of an application or the deactivation of billing privileges are not subject to review by an ALJ or the Board.  I am bound to follow the Secretary’s regulations.  This conclusion that Petitioner has no right to review of the rejection of his August 5, 2019 application and the deactivation of his billing privileges is consistent with the provisions of the Act that require that the Secretary provide for ALJ and judicial review only in the case of a denial or revocation of Medicare enrollment.  Act § 1866(b)(2), (h)(1).  Petitioner’s argument that I should have some authority to grant equitable relief is unsupported by an authority.  Indeed, it is clear that I have no authority to grant equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010). 

I also conclude that Petitioner has no right to ALJ review in this forum of the denial of payment of Petitioner’s claims during the gap period.  Medicare claim reimbursement is simply not subject to review by an ALJ in this forum.  Urology Grp. of NJ, LLC, DAB No. 2860 at 6-7 (2018). 

Petitioner does have a right to ALJ review of the reconsidered determination of the effective date of the reactivation of Petitioner’s billing privileges.  The Secretary has not specifically stated that a provider or supplier has a right to ALJ review of CMS or MAC determinations related to the reactivation of billing privileges.  42 C.F.R. §§ 424.70-.90, 424.545, 498.3(b), 498.5.  However, 42 C.F.R. § 498.3(b)(15) provides that “[t]he effective date of a Medicare provider agreement or supplier approval” is an initial determination subject to review by an ALJ.  The Board has given an expansive interpretation to 42 C.F.R. § 498.3(b)(15)4 and found a right to ALJ review of the

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effective date of billing privileges upon enrollment in Medicare as well as the effective date of the reactivation of billing privileges.  See, e.g., Victor Alvarez, M.D., DAB No. 2325 at 3-12 (2010) (determination of effective date of enrollment in Medicare is an initial determination subject to ALJ review and Board appeal); Urology Grp. of NJ, LLC, DAB No. 2860 at 6 (no right to review of a CMS or MAC determination to deactivate billing privileges but right to review of the determination of the effective date of reactivation of billing privileges). 

Applying the policy adopted by the Board in Alvarez and Urology, I conclude that a supplier has the right to ALJ review of the CMS or MAC determination of the effective date of reactivation of billing privileges.  In conducting my review, I am mindful of the Board’s prior determination that the only determination of CMS or the MAC that is subject to my review in a provider or supplier enrollment case is the reconsidered determination.  42 C.F.R. § 498.5(l)(1)-(2); Neb Grp. of Ariz. LLC, DAB No. 2573 at 7 (2014). 

4.  Summary judgment is appropriate.

I have concluded, based on the rationale of the Board in prior cases, that Petitioner has a right to ALJ review of the reconsidered determination of the effective date of reactivation of its billing privileges, i.e., the right to file claims with and receive payment from Medicare.  I also conclude that there are no disputed issues of material fact related to the reactivation of Petitioner’s billing privileges that require a hearing in this case.  CMS is entitled to judgment as a matter of law and summary judgment is appropriate.

Petitioner is entitled to a hearing on the record before an ALJ under the Social Security Act (Act).  Act §§ 205(b); 1866(h)(1), (j); Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004).  However, when summary judgment is appropriate, no hearing is required.  The Board has long accepted that summary judgment is an

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acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498.  See, e.g., Crestview Parke, 373 F.3d at 748-51; Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997).  The Board has accepted that Fed. R. Civ. P. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate.  I advised the parties in the Acknowledgment and Prehearing Order (Prehearing Order) that summary judgment is an available procedural device and that the law as it has developed related to Fed. R. Civ. P. 56 will be applied.  Standing Order ¶¶ D, G.  Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law.  See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 5 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 5 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein). 

5.  The effective date of reactivation of Petitioner’s billing privileges, determined in accordance with CMS policy, is the date on which the MAC received the application that it processed to approval, in this case the date of receipt was January 23, 2020.

6.  The MAC determined on reconsideration that Petitioner’s billing privileges were reinstated effective December 24, 2019, based on a January 23, 2020 reactivation of billing privileges effective date and retrospective billing privileges of 30 days beginning on December 24, 2019.

The Secretary’s regulations do not specifically address how to determine the reactivation effective date of Medicare billing privileges.  42 C.F.R. pt. 424, subpt. P.5   However, CMS has addressed the determination of the effective date of reactivation by policy.  CMS policies regarding deactivations and reactivations of billing privileges in effect at the time of the initial and reconsidered determinations in this case are found in the Medicare Program Integrity Manual (MPIM), CMS Pub. 100-08, § 15.27.1.2 (rev. 865, eff. Mar. 12, 2019).  MPIM § 15.27.1.2 provides that the effective date of reactivation of

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billing privileges is the date the MAC received the reactivation application that the MAC processed to completion.  MPIM § 15.27.1.2 also requires that MACs grant retrospective billing privileges for reactivating providers and suppliers.  In this case, there is no dispute that the MAC received Petitioner’s reactivation application that it processed to completion on January 23, 2020.

Applying the regulations in this case is straightforward.  There is no dispute, based on the reconsidered determination, that Petitioner’s Medicare billing privileges were stopped (deactivated) effective November 1, 2019.  There is also no dispute that on January 23, 2020, the MAC received Petitioner’s application to reactivate its Medicare billing privileges – the application the MAC processed to completion.  Accordingly, the effective date of reactivation of Petitioner’s billing privileges is January 23, 2020.  The first day of the period for retrospective billing is December 24, 2019.  I also conclude that Petitioner’s arguments establish no basis for any relief. 

III.  Conclusion

For the foregoing reasons, I conclude that the effective date of reactivation of Petitioner’s billing privileges is January 23, 2020, with retrospective billing privileges beginning on December 24, 2019.

2. Citations are to the October 1, 2019 revision of the Code of Federal Regulations (C.F.R.) that was in effect at the time of the initial determination, unless otherwise indicated.  An appellate panel of the Departmental Appeals Board (Board) concluded in Mark A. Kabat, D.O., DAB No. 2875 at 9-11 (2018), that the applicable regulations are those in effect at the time of the initial determination.
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3. The CMS deactivation notice did not inform Petitioner of the right to submit a rebuttal pursuant to 42 C.F.R. § 405.374.  CMS Ex. 1 at 92-93.  However, I have no authority to review the deactivation determination or fashion a remedy for this oversight.
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4. The Act requires administrative and judicial review only in the cases of denial of enrollment or termination of enrollment in Medicare.  Act § 1866(b)(2), (h)(1).  The Secretary provided by regulation, consistent with the Act, that a provider or supplier has a right to ALJ and Board review if enrollment is denied or revoked, including the revocation of a provider agreement.  42 C.F.R. §§ 424.530(a) (CMS may deny enrollment); 424.535(a) (CMS may revoke enrollment and any related provider agreement); 424.545(a) (right to review enrollment denial or revocation); 498.3(b)(17) (whether to deny or revoke enrollment is an initial determination subject to review).  The Act and regulations do not specifically grant the right to ALJ or Board review of determinations related to billing privileges that are not related to the determination of CMS or the MAC to deny or revoke enrollment.  A conclusion that the revocation or denial of billing privileges is the same as the revocation or denial of enrollment, could explain why a right to review is extended to CMS or MAC actions involving billing privileges.  However, as this case demonstrates, the deactivation and reactivation of billing privileges had no effect on Petitioner’s enrollment.  The point of this discussion is not that Petitioner should not receive review of the reactivation determination.  Indeed, prior decisions of the Board support granting such review.  The point is that it is for the Secretary (or in cases involving billing privileges and not enrollment, the Board) to determine what review will be accorded beyond that required by the Act or regulations and there appears to be no limit on discretion other than the review mandated by the Act and regulations.
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5. The effective date for Medicare billing privileges is determined in accordance with 42 C.F.R. § 424.520.  Pursuant to 42 C.F.R. § 424.510(a)(2), a provider or supplier is enrolled in Medicare by CMS when the provider or supplier completes the enrollment process, including any applicable survey and certification or accreditation process.  There is no provision for backdating an effective date of Medicare enrollment to the date of receipt of an application as in the case of billing privileges.
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