Pulmonary and Critical Care Specialists of Northern Virginia, DAB CR5914 (2021)

DECISION

I sustain the determination of a Medicare contractor to reactivate the Medicare billing privileges of Petitioner, Pulmonary and Critical Care Specialists of Northern Virginia, effective December 20, 2020. 

I. Background

Petitioner requested a hearing in order to challenge the effective date of reactivation of its Medicare billing privileges.  The Centers for Medicare & Medicaid Services (CMS) moved for summary judgment, filing a brief and 10 proposed exhibits that are identified as CMS Ex. 1-CMS Ex. 10.  Petitioner did not respond to the motion.  I sent an order to show cause to Petitioner, to which Petitioner replied.  I receive Petitioner’s reply to the order to show cause as Petitioner’s brief.  I receive CMS’s exhibits into the record.  I also receive as an exhibit Petitioner’s hearing request and the documents that Petitioner submitted as attachments to that request.

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II.  Issues, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether the contractor properly established December 20, 2020, to be the effective date of reactivation of Petitioner’s Medicare billing privileges.1

B. Findings of Fact and Conclusions of Law

This case is governed by a regulation, 42 C.F.R. § 424.540.  In relevant part, the regulation states:

(a) Reasons for deactivation.  CMS may deactivate the Medicare billing privileges of a provider or a supplier for any of the following reasons:

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(3) The provider or supplier does not furnish complete and accurate information and all supporting documentation within 90 calendar days of receipt of notification from CMS to submit an enrollment application and supporting documentation, or resubmit and certify to the accuracy of its enrollment information.

(b) Reactivation of billing privileges.

(1) In order for a deactivated provider or supplier to reactivate its Medicare billing privileges, the provider or supplier must recertify that its enrollment information currently on file with Medicare is correct and furnish any missing information as appropriate.

A contractor’s decision to deactivate a provider’s reimbursement privileges is not a determination that gives hearing rights to the affected individual or entity.  See 42 C.F.R. §§ 498.3(b) and (d).  Consequently, a provider or supplier whose Medicare billing privileges are deactivated may not challenge the contractor’s decision to deactivate.  I have no authority to decide that challenge.

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CMS has published guidance to its contractors concerning what effective participation date to assign to a supplier or provider that seeks to reactivate its participation.  That date shall be the date when the contractor receives a reenrollment application that it approves.  Medicare Program Integrity Manual (MPIM), § 15.27.1.2.  The guidance is consistent with regulatory requirements governing the effective date of participation of newly participating providers and suppliers.  42 C.F.R. § 424.520(d); Willie Goffney Jr., M.D., DAB No. 2763 (2017), aff’d sub nom. Goffney v. Azar, No. CV 17-8032 MRW (C.D. Cal. Sept. 25, 2019), aff’d sub nom. Goffney v. Becerra, 995 F.3d 737 (2021).

Therefore, the only question that I may consider is whether the contractor properly assigned an effective reactivation date to a provider or supplier whose billing privileges are deactivated.  The propriety of the contractor’s action in determining to reactivate is governed by 42 C.F.R. § 424.520(d)(1).  In essence, the regulation provides that the effective date of participation is the date that a provider or supplier files an application that the contractor or CMS approves.  Thus, the earliest possible effective date that a contractor may assign to a provider or a supplier whose billing privileges are deactivated is the date that the provider or supplier files a new enrollment application with the contractor that the contractor subsequently approves.  The contractor has no authority to assign a retroactive reactivation date to a provider or a supplier whose billing privileges previously were deactivated.  Moreover, I do not have authority to order a contractor to assign a retroactive reactivation date.

On March 20, 2015, Petitioner sent a Medicare reenrollment application to a Medicare contractor.  CMS Ex. 3.  On June 10, 2015, the contractor requested additional information from Petitioner.  CMS Ex. 4.  The contractor sent a second request to Petitioner on June 25, 2015, and a third request on July 11, 2015.  CMS Ex. 6.  Petitioner did not reply to the requests.  On July 29, 2015, the contractor deactivated Petitioner’s Medicare billing privileges.  It advised Petitioner that Medicare would not pay Petitioner’s claims until its billing privileges were reactivated.  CMS Ex. 7; CMS Ex. 8.

On June 15, 2015, Petitioner affiliated with another Medicare-enrolled supplier, Privia Group.  Privia Group claimed reimbursement for the services provided by Petitioner.

Petitioner ended its affiliation with Privia Group in 2020 and sought to claim reimbursement from Medicare for the services that it provided.  To that end, Petitioner filed a Medicare reenrollment application on December 31, 2020.  CMS Ex. 9.  In that application Petitioner sought to be reimbursed for services that it had provided beginning on April 1, 2020.  Id. at 5.

The contractor approved Petitioner’s application on January 26, 2021, with an effective enrollment date of December 31, 2020, the date when Petitioner filed its application.  CMS Ex. 1.

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December 31, 2020 is the earliest date on which Petitioner’s billing privileges may be reactivated, because that is the date on which the contractor received Petitioner’s reenrollment application.  Neither the contractor nor I may assign Petitioner an earlier effective reenrollment date.

Petitioner disputes neither the facts nor the authority on which I rely.  Rather, it argues that its effective reenrollment date is unfair.  It refers to the circumstances of the Covid-19 pandemic, noting that the services it provides, pulmonary care, are essential to protecting and assisting the pandemic’s victims.  Additionally, Petitioner asserts that it was caught flat-footed when it discovered in 2020 that the contractor had deactivated its billing privileges.  It contends that it had assumed that Privia had protected its billing privileges during its relationship with that entity.  See Petitioner’s Request for Hearing at 2-7; Petitioner’s Brief.

I am not unsympathetic to Petitioner’s plight.  Petitioner may be providing vital services and it may have been naïve in trusting Privia to manage the details of its relationship with Medicare.  However, Petitioner’s arguments provide me with no basis to change the effective date of its Medicare reenrollment.  As I have stated, the regulations clearly provide that the earliest effective date of reenrollment for a supplier whose billing privileges have been deactivated is the date when it files a reenrollment application that the contractor or CMS approves.  Furthermore, I may not decide this case based on equitable principles.  US Ultrasound, DAB No. 2032 at 8 (2010).

1. Although the contractor established an effective reactivation date of December 20, 2020, it authorized Petitioner to file claims for reimbursement for items or services supplied as early as October 2, 2020.  Neither party has challenged the propriety of this authorization and I do not address it here.
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