Champion Chiropractic Life Center, Inc., DAB CR5917 (2021)

DECISION

Petitioner, Champion Chiropractic Life Center, Inc. (CCLC), appeals the determination establishing the effective date of its Medicare reactivation and a resulting gap in billing privileges as a Medicare supplier.  For the reasons explained below, I find that Wisconsin Physicians Service Insurance Corporation (WPS), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), properly determined that the effective date of Petitioner’s Medicare reactivation is April 17, 2019, with retrospective billing permitted as of March 18, 2019.  Based on the record, I affirm the reactivation effective date of April 17, 2019. 

I.  Background and Procedural History

Petitioner was enrolled in the Medicare program as a supplier of chiropractic services.  CMS Exhibit (Ex.) 5 at 1.  WPS sent a notice to Petitioner on April 13, 2018, stating that every 5 years, CMS required it to revalidate its Medicare enrollment record and the required revalidation information needed to be provided by June 30, 2018.  CMS Ex. 2.  This notice was sent to Petitioner at 126 College Drive, Decorah, IA, 52101-1660.  Petitioner was warned in the notice that a failure to respond could result in possible

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deactivation of its Medicare enrollment, non-payment for services rendered, and a gap in reimbursement. 

Petitioner did not respond to the April 13, 2018 notice.  On July 11, 2018, WPS sent a letter to Petitioner, indicating that it was holding all payments on its Medicare claims because it hadn’t revalidated its enrollment record.  CMS Ex. 3.  This letter was also sent to 126 College Drive, Decorah, IA, 52101-1660.  There was also no response from Petitioner to this letter.  As a result, in a letter dated September 7, 2018, WPS notified Petitioner that it had placed a stop on its Medicare billing privileges effective September 6, 2018 because it had not revalidated its enrollment and no Medicare claims would be paid after that date.  CMS Ex. 4. 

On February 27, 2019, CMS received an application to re-activate the enrollment of Petitioner.  CMS Ex. 5.  In an e-mail dated March 6, 2019, CMS requested additional information relating to that application, including corrections of the Medicare enrollment application and verification of the practice location address.  CMS Ex. 6.  In a letter dated April 5, 2019, WPS notified Petitioner that it was rejecting the enrollment application dated February 27, 2019 because of missing information.  CMS Ex. 7. 

Petitioner submitted another revalidation Medicare enrollment application, which was received on April 17, 2019.  CMS Ex. 8 at 1.  In a letter dated May 29, 2019, Petitioner was notified that the revalidation Medicare enrollment application was approved but there would be a gap in billing privileges from September 6, 2018 through March 17, 2019.  CMS Ex. 9.  Petitioner filed a request for reconsideration on June 20, 2019, contesting the effective date and the resulting billing gap, asserting that it never received the notification of the need to revalidate despite having notified Medicare of a change of address in June 2014.  CMS Ex. 10.  However, in a reconsideration determination dated July 31, 2019, WPS concluded that it could not remove the lapse in billing privileges and the effective date was correct.  CMS Ex. 1.

Petitioner filed a timely request for hearing before an Administrative Law Judge (ALJ).  On August 19, 2019, Judge Weyn issued a Prehearing Order (Order).1  CMS filed a motion for summary judgment with a brief in support of the motion (CMS Br.), accompanied by 13 proposed exhibits (CMS Exs. 1-13).  Petitioner filed a brief (P. Br.) objecting to CMS’s motion for summary judgment and seven proposed exhibits (P. Exs. 2-8).  In the absence of any objection from either party, CMS Exs. 1-13 and P. Exs. 2-8 are admitted into the record.  The Order advised the parties to submit written direct testimony for each witness and that an in-person hearing would be held only if a party requested to cross-examine a witness.  Order ¶ 10.  Neither party offered the written

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direct testimony of any witness as part of its prehearing exchange.  As a result, an in-person hearing is not necessary and I issue this decision based on the written record.2

II.  Issue

The issue in this case is whether WPS, acting on behalf of CMS, properly established April 17, 2019 as the effective date for the reactivation of Petitioner’s Medicare billing privileges.

III.  Jurisdiction  

I have jurisdiction to hear and decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2); see also 42 U.S.C. § 1395cc(j)(8).

IV.  Discussion

A.  Applicable Authority

The Social Security Act (Act) authorizes the Secretary of Health and Human Services to promulgate regulations governing the enrollment process for providers and suppliers.  42 U.S.C. §§ 1302, 1395cc(j).  A “supplier” is “a physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services” under the Medicare provisions of the Act.  42 U.S.C. § 1395x(d); see also 42 U.S.C. § 1395x(u).

A supplier must enroll in the Medicare program to receive payment for covered Medicare items or services.  42 C.F.R. § 424.505.  The term “Enroll/Enrollment means the process that Medicare uses to establish eligibility to submit claims for Medicare covered items and services.”  42 C.F.R. § 424.502 (emphasis in original).  A supplier seeking billing privileges under the Medicare program must “submit enrollment information on the applicable enrollment application.”  42 C.F.R. § 424.510(a).  Once the supplier successfully completes the enrollment process, CMS enrolls the supplier into the Medicare program.  42 C.F.R. § 424.510(a).  CMS then establishes an effective date for billing privileges under the requirements stated in 42 C.F.R. § 424.520(d) and may permit limited retrospective billing under 42 C.F.R. § 424.521.

To maintain Medicare billing privileges, suppliers must revalidate their enrollment information at least every five years.  42 C.F.R. § 424.515.  When CMS notifies suppliers that it is time to revalidate, suppliers must submit the applicable enrollment application,

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with complete and accurate information, and supporting documentation within 60 calendar days of CMS’s notification.  42 C.F.R. § 424.515(a)(2). 

CMS can deactivate an enrolled supplier’s Medicare billing privileges if the enrollee fails to comply with revalidation requirements.  42 C.F.R. § 424.540(a)(3).  If CMS deactivates a supplier’s billing privileges due to an untimely response to a revalidation request, the enrolled supplier may apply to CMS to reactivate its Medicare billing privileges by completing a new enrollment application or, if deemed appropriate, recertifying its enrollment information that is on file.  42 C.F.R. § 424.540(b)(1)-(2). 

B.  Findings of Fact and Conclusions of Law3

1.  The effective date of Petitioner’s Medicare billing privileges is April 17, 2019, the date WPS received the revalidation enrollment application it subsequently processed to approval. 

The effective date for Medicare billing privileges for physicians, non-physician practitioners, and physician or non-physician practitioner organizations is the later of the “date of filing” or the date the supplier first began furnishing services at a new practice location.  42 C.F.R. § 424.520(d).  The “date of filing” is the date that the Medicare contractor “receives” a signed enrollment application that the Medicare contractor is able to process to approval.  73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008); Donald Dolce, M.D., DAB No. 2685 at 8 (2016).  The Departmental Appeals Board has applied these effective date provisions to reactivation cases.  Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 at 6-7 (2019). 

In this case, WPS received an application to reactivate the enrollment of Petitioner on April 17, 2019.  CMS Ex. 8.  Petitioner was notified on May 29, 2019, that the revalidation Medicare enrollment application was approved.  CMS Ex. 9.  Petitioner does not assert, nor does the record establish, that the revalidation enrollment application that was processed to approval was received prior to April 17, 2019.  As a result, given that April 17, 2019 is the date that WPS received the revalidation enrollment application that was subsequently processed to approval, I find that this is the effective date of Petitioner’s Medicare billing privileges, with retrospective billing privileges from March 18, 2019.4

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As noted above, Petitioner did file an earlier revalidation Medicare enrollment application that was received on February 27, 2019.  CMS Ex. 5.  However, this application was rejected by WPS on the basis of missing information.  CMS Ex. 7.  I have no authority to review the rejection of this application in order to find an earlier effective date of billing privileges.  The relevant regulation makes quite clear that an enrollment application that is rejected may not be appealed.  42 C.F.R. § 424.525(d); see James Shepard, M.D., DAB No. 2793 at 8 (2017) (holding that 42 C.F.R. § 424.525(d) “plainly prohibits” an administrative law judge from reviewing a rejected application because there are no appeal rights for such a determination).  As a result, the rejected revalidation enrollment application received on February 27, 2019 cannot serve as a basis for an earlier effective date for Medicare billing privileges.

2.  I have no authority to review the deactivation of Petitioner’s billing privileges and cannot afford it equitable relief.

Petitioner argues that it never received any notification from CMS in 2018 that revalidation was needed.  P. Br. at 3.  It asserts that it notified CMS of the change of address from 126 College Drive, Decorah, IA, 52101-1660 to 300 East Water St., Decorah, IA, 52101-1660 in June 2014 but did not receive any letters regarding the need to revalidate at the 300 East Water Street address in 2018.5  CMS Ex. 11.  Petitioner also argues that the gap in billing adversely affects an aging population on fixed incomes in the rural community in which it practices.  P. Br. at 3.

With respect to the arguments related to the lack of notice of the need to revalidate and the subsequent deactivation, I must make clear that I have no authority to review CMS’s deactivation of its Medicare billing privileges because deactivation is not an “initial determination” subject to review by an administrative law judge.  See 42 C.F.R. § 498.3(b)(6); Urology Grp. of NJ, LLC, DAB No. 2860 at 6  (2018) (“The regulations do not grant suppliers the right to appeal deactivations.”).  Considering an argument similar to that made in the instant case, the Board stated that “whether or not Petitioner was notified of the deactivation of its Medicare billing privileges is outside the Board's authority to review.”  Urology Grp., DAB No. 2860at 7.  As the Board stated, “[w]hile CMS and Medicare administrative contractors are authorized to reject a supplier’s

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revalidation application and deactivate the supplier’s billing privileges, ALJs and the Board are not authorized to assess whether the deactivation of a supplier’s billing privileges was correct.”  Sokoloff, DAB No. 2972at 5 (citing Urology Grp., DAB No. 2860at 6).  Instead, deactivation decisions have a separate review process involving the submission of a rebuttal to CMS.  42 C.F.R. § 424.545(b).

Similarly, while Petitioner’s arguments are compelling and reflect both good faith efforts to comply with the reporting requirements and concern for the aging population it serves, I do not have the authority to consider Petitioner’s request to change the effective date to eliminate the gap in billing caused by the deactivation on equitable grounds.  I have no authority to provide Petitioner any form of equitable relief based on principles of fairness or equitable estoppel and cannot change Petitioner’s effective date for that reason.  US Ultrasound, DAB No. 2302 at 8 (2010) (“[n]either the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).  Thus, the only issue in the reconsideration determination over which I have jurisdiction is the effective date of the enrollment application reinstating Petitioner’s Medicare billing privileges. 

V.  Conclusion

I affirm the effective date of Petitioner’s Medicare enrollment to be April 17, 2019, with retrospective billing privileges from March 18, 2019.

1. This case was initially assigned to Judge Weyn but was reassigned to me on July 7, 2021.
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2. Because a hearing is not necessary, I need not decide whether summary judgment is appropriate.
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3. My findings of fact and conclusions of law appear as numbered headings in bold italic type.
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4. When a contractor approves an enrollment application, it may allow retrospective billing for up to 30 days prior to the effective date established under 42 C.F.R. § 424.520(d) for a supplier who meets all program requirements and is providing Medicare-covered services.  42 C.F.R. § 424.521(a)(1).
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5. While not relevant for the reasons discussed below, it appears that CMS received the change of address information in June 2014 since a letter from CMS to Petitioner regarding that submission was sent to the 300 East Water Street address on July 10, 2014.  CMS Ex. 12.  It also appears that the change of address was not effectuated at that time because of a failure to follow up with requested information.  CMS Exs. 12 and 13.  However, there are subsequent documents from CMS referring to the 300 East Water Street address, so it is unclear how or if the change of address was handled by CMS.  P. Exs. 5 and 6.  Given the lack of relevance, further development of this issue would serve no purpose.
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