Jaga Nath S. Glassman, M.D., DAB CR5937 (2021)

DECISION

Jaga Nath S. Glassman, MD (Petitioner) was required to resubmit and recertify his enrollment information to continue his Medicare billing privileges.  As a result of his failure to timely comply with a request that he revalidate his individual Medicare enrollment record, the Centers for Medicare and Medicaid Services (CMS) determined there was a gap for his billing privileges from July 31, 2017 through May 13, 2018.  Petitioner has appealed the unfavorable reconsidered determination in this case, in which CMS determined that Petitioner had not provided evidence to support an earlier effective date of reactivation of his billing privileges.  For the reasons discussed below, I find that CMS correctly determined the gap of billing privileges from July 31, 2017 through May 13, 2018. The effective date of reactivation is May 14, 2018.

I. Background and Procedural History

On April 5, 2017, Noridian Healthcare Solutions (Noridian), a Medicare administrative contractor, sent a letter to Petitioner stating that he must revalidate his Medicare enrollment record no later than June 30, 2017.  CMS Ex. 1; CMS Ex. 2.  Petitioner submitted an incomplete revalidation application received by CMS on May 15, 2017.

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CMS Ex. 3; CMS Ex. 4 at 1.  On June 28, 2017, Noridian e-mailed a request for corrections to complete the application to j.martinez2919@yahoo.com, the contact address provided by Petitioner. CMS Ex. 4; CMS Ex. 5 at 1.  Noridian asked Petitioner to respond by July 7, 2017 for timely processing of the application. CMS Ex. 4. Petitioner did not provide a response until July 14, 2017. CMS Ex. 5 at 1. In that e-mail, Petitioner asked if he could revalidate without using a computer.  Id. Noridian responded on July 18, 2017, advising Petitioner to close out the online application and to submit the application by paper.  Id.  A response was never received, and Noridian rejected Petitioner’s application on July 31, 2017 and stopped1 his billing privileges for failure to revalidate his enrollment information. CMS Ex 6; CMS Ex. 7.

Petitioner filed a second revalidation application on September 1, 2017.  CMS Ex. 8 at 1; CMS Ex. 9. This application listed tycehird@gmail.com as his contact. CMS Ex. 8 at 1.  On September 27, 2017, Noridian sent a message to the e-mail address provided (tycehird@gmail.com) requesting needed information to complete that application.  CMS Ex. 9.  No response to this request was received. Noridian then sent an e-mail to Petitioner stating that his billing privileges were stopped July 31, 2017, due to his failure to timely revalidate his enrollment information.  CMS Ex. 10.  

Noridian received a third application from Petitioner to revalidate and reactivate his billing privileges on May 14, 2018.  CMS Ex. 11; CMS Ex. 12; CMS Ex. 14 at 5.  Based on this application, Noridian reactivated Petitioner’s billing privileges effective May 14, 2018, with a billing gap from July 31, 2017 through May 13, 2018.  CMS Ex. 12.  On July 5, 2018, Petitioner timely requested reconsideration of the gap of billing privileges.  CMS Ex. 13.  An unfavorable reconsidered determination was issued by Noridian on October 3, 2018, finding Petitioner had failed to timely file a complete application to revalidate his enrollment information and the gap in his billing privileges was correct. CMS Ex. 14.

Petitioner submitted a request for an administrative law judge (ALJ) hearing that the Civil Remedies Division received on November 30, 2018.  ALJ Bill Thomas was originally assigned the case and issued an Acknowledgment and Pre-Hearing Order (Pre Hearing Order) on December 6, 2018.  This order directed the parties on how and when to file their pre-hearing exchanges.  This case was reassigned to me on August 9, 2021.  I adopt Judge Thomas’s Pre-Hearing Order.  CMS filed a pre-hearing brief and motion for summary judgment, along with 14 proposed exhibits (CMS Exs. 1-14). CMS did not file any exhibits containing proposed written direct testimony for any witnesses and did not list any witnesses.  Petitioner did not file a prehearing brief or any proposed exhibits.  Petitioner did not object to any of CMS’s proposed exhibits.  Petitioner filed a

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two-page handwritten letter objecting to CMS’s Motion for Summary Judgment.  In the absence of any objections by Petitioner to CMS’s proposed exhibits, I admit CMS Exs. 1 14 into the record.

As neither party has offered written direct testimony of a witness as part of the pre hearing exchange, a hearing for the purpose of cross-examination is unnecessary.  Pre-Hearing Order at 6.  I consider the record in this case to be closed, and the matter is ready for a decision on the merits, based on the parties’ written submissions and arguments.  As a decision can be rendered based on the written record, CMS’s motion for summary judgment is moot and is denied.

II. Issue

Whether CMS properly determined a billing privileges gap for Petitioner from July 31, 2017 through May 13, 2018.

III. Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R § 498.3(b)(15); Victor Alvarez, M.D., DAB No. 2325 at 8-12 (2010); see also 42 U.S.C. § 1395cc(j)(8). 

IV. Findings of Fact, Conclusions of Law, and Analysis

1. On April 5, 2017, Noridian requested by mail that Petitioner revalidate his individual Medicare enrollment record no later than June 30, 2017.

2. Petitioner filed an incomplete application on May 15, 2017.

3. On June 28, 2017, Noridian requested additional information by e-mail to complete the application by July 7, 2017. The e-mail was sent to the contact person provided by Petitioner.

4. Petitioner did not provide the requested additional information, but he e-mailed Noridian on July 14, 2017, asking if the revalidation could be completed without the use of a computer.

5. Noridian responded to Petitioner on July 18, 2017 and advised Petitioner to close the online application and apply on paper.

6. Petitioner did not respond and, on July 31, 2017, Noridian rejected the pending revalidation application and stopped billing privileges for Petitioner’s failure to revalidate his enrollment information.

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7. On September 1, 2017 Petitioner submitted a new, incomplete application.

8. Noridian sent an e-mail on September 27, 2017, to the individual listed as Petitioner’s point of contact, requesting additional information.

9. Petitioner did not respond to this request. Noridian sent an e-mail on October 30, 2017, informing Petitioner that his billing privileges were stopped effective July 31, 2017.

10. A third application for revalidation was received May 14, 2018. Based on this application, Noridian sent Petitioner notice that his billing privileges were reinstated effective May 14, 2018, with a gap for billing privileges from July 31, 2017 through May 13, 2018.

IV. Discussion

A. Law and Regulations

Petitioner is a “supplier” for purposes of the Medicare program.  See 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202, 498.2 (definitions of supplier).  A supplier furnishes items or services under Medicare, and the term applies to physicians or other practitioners who are not included within the definition of the phrase “provider of services.”  42 U.S.C. § 1395x(d).  A supplier must enroll in the Medicare program to receive payment for covered Medicare items or services.  42 C.F.R. § 424.505.  The regulations at 42 C.F.R. Part 424, subpart P, establish the requirements for a supplier to enroll in the Medicare program. 42 C.F.R. §§ 424.510-424.516; see also 42 U.S.C. § 1395cc(j)(1)(A) (authorizing the Secretary of the U.S. Department of Health and Human Services to establish regulations addressing the enrollment of providers and suppliers in the Medicare program).  A supplier who seeks billing privileges under Medicare “must submit enrollment information on the applicable enrollment application.”  42 C.F.R. § 424.510(a)(1).  “Once the provider or supplier successfully completes the enrollment process . . . , CMS enrolls the provider or supplier into the Medicare program.”  Id.; see also 42 C.F.R. § 424.510(d) (listing enrollment requirements).  Thereafter, “[t]o maintain Medicare billing privileges, a [supplier] must resubmit and recertify the accuracy of its enrollment information every 5 years.”  42 C.F.R. § 424.515. Further, a supplier “may be required to revalidate [its] enrollment outside the routine 5-year revalidation cycle . . . .”  42 C.F.R. § 424.515(e).

CMS is authorized to deactivate an enrolled supplier’s Medicare billing privileges if the supplier does not provide complete and accurate information within 90 days “of receipt of notification . . . .”  42 C.F.R. § 424.540(a)(3).  If CMS deactivates a supplier’s Medicare billing privileges, “[n]o payment may be made for otherwise Medicare covered items or services furnished to a Medicare beneficiary . . . .”  42 C.F.R. § 424.555(b)

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Urology Grp. of NJ, LLC, DAB No. 2860 at 10 (2018) (“The regulations, taken together, clearly establish that a deactivated provider or supplier was not intended to be entitled to Medicare reimbursement for services rendered during the period of deactivation.”).  The Departmental Appeals Board (DAB) has stated that “[i]t is certainly true that [the petitioner] may not receive payment for claims for services during any period when his billing privileges were deactivated.”  Willie Goffney, Jr., M.D., DAB No. 2763 at 6 (2017), aff’d, Goffney v. Azar, 2:17-CV-8032 (C.D. Cal. Sept. 25, 2019), aff’d sub nom. Goffney v. Becerra, 995 F.3d 737 (9th Cir. 2021); see Urology Grp., DAB No. 2860 at 11 (“Taking these unique effects of revocation into consideration, it is reasonable to conclude that CMS intended for revocations and deactivations to share the feature of precluding a provider or supplier from collecting reimbursement for services rendered during the period of inactive Medicare billing privileges, while simultaneously intending for revocations to have more severe consequences on a provider’s or supplier’s ability to participate.”); Frederick Brodeur, M.D., DAB No. 2857 at 16 (2018) (“Allowing a deactivated supplier to bill for services furnished during a period of deactivation would conflict with section 424.555(b) of the regulations . . . .”).  The regulation authorizing deactivation explains that “[d]eactivation of Medicare billing privileges is considered an action to 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).

B. Analysis

On April 5, 2017, Noridian mailed notices to Petitioner directing him to revalidate his Medicare enrollment record no later than June 30, 2017.  Noridian warned that Petitioner’s failure to revalidate could result in deactivation of his Medicare billing privileges, with a resulting gap in reimbursement. CMS Ex. 1.  An incomplete application was sent to Noridian, and Petitioner was notified that the application was incomplete.  CMS Ex. 4.  After an inquiry by Petitioner on how to file a paper application, Noridian replied to Petitioner with instructions on how to accomplish revalidation using that method.  CMS Ex. 4.  Petitioner failed to respond to this e-mail.  He did not complete the revalidation process.  After he failed to complete the revalidation, Noridian notified Petitioner that billing privileges were deactivated effective July 31, 2017.  CMS Ex. 6; CMS Ex. 7. 

Petitioner filed a new revalidation application on September 1, 2017.  CMS Ex. 8.  This application could not be approved, as Noridian required additional information for that application.  On September 27, 2017, Noridian e-mailed the contact person provided by Petitioner to obtain the needed information. CMS Ex. 9.  Petitioner was informed that the needed information to correct that application should be submitted no later than October 26, 2017.  Id.  No response to this inquiry was received.  On October 30, 2017, Noridian sent notice to Petitioner that his billing privileges were stopped as of July 31, 2017. CMS Ex. 10.  A third application was submitted by Petitioner on May 14, 2018.  CMS Ex. 11;

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CMS Ex. 14 at 5.  Noridian approved this application, but with a billing privileges gap from July 31, 2017 through May 13, 2018.  CMS Ex. 12.

In Petitioner’s reconsideration request and request for hearing, Petitioner has not provided any evidence to support an earlier reactivation date.  Petitioner’s argument is based upon equitable reasons. In the hearing request, he states that he attempted to call and talk with employees of Noridian to ascertain what was needed to complete the revalidation process.  However, when he called, he was placed on hold for extended periods of time and he terminated the calls.  He also indicated that he is not good with computers.  After his e-mail inquiry, a return e-mail message contained instruction on how to file his forms by mail and, if he needed assistance, a name and e-mail address of a person he could contact. CMS Ex. 5 at 1.  However, there is no evidence that he contacted that individual.  There is no evidence that he followed the instructions for completing the revalidation process by mail, as his application was rejected because the requested corrections were not received.  CMS Ex. 6.  He states the e-mail contact he provided in his information was no longer an employee in his office.  For that reason, he did not receive the request for additional information.  CMS Ex. 5 at 1.  That request for information was e-mailed to the contact person listed by him in his paperwork provided to Noridian. Noridian sent the request for application corrections to that email address.  CMS Ex. 4.  It was Petitioner’s responsibility to keep his contact information updated and his failure to do so resulted in his application being rejected for lack of completion.  It also does not explain his failure to complete the process by mail after he was given instructions and a point of contact if he needed assistance.  After employing his current billing service, they completed his third application without errors and his billings privileges were restored.

The pertinent regulation with respect to the effective date of reactivation is 42 C.F.R. § 424.520(d). Urology Grp., DAB No. 2860 at 7 (“The governing authority to determine the effective date for reactivation of Petitioner’s Medicare billing privileges is 42 C.F.R. § 424.520(d).” (italics omitted)). Section 424.520(d) states that “[t]he effective date for billing privileges for [physicians] is the later of – (1) [t]he date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or (2) [t]he date that the supplier first began furnishing services at a new practice location.”  The DAB has explained that the “date of filing” is the date “that an application, however sent to a contractor, is actually received.”  Alexander C. Gatzimos, MD, JD, LLC, DAB No. 2730 at 5 (2016) (emphasis omitted).  Noridian deactivated Petitioner’s billing privileges based on his failure to comply with the revalidation request. CMS Ex. 10.  On May 14, 2018, Petitioner filed a third application for purposes of revalidation and reactivation that was processed to approval.  CMS Ex. 11.  Based on the May 14, 2018 receipt date of the application that was processed to approval, the billing privileges gap from July 31, 2017 through May 13, 2018 is not erroneous.  42 C.F.R. § 424.520(d)(1); see Urology Grp., DAB No. 2860 at 9 (“Moreover, the fact that a supplier must file a new enrollment application in order to reactivate its billing privileges is consistent with

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the language of section 424.520(d) and compelling evidence that the provision should apply to reactivations.”); Frederick Brodeur, DAB No. 2857 at 16 (“Petitioner remained enrolled in Medicare, but his deactivated status made [him] ineligible for payment for any covered services he furnished to otherwise eligible Medicare beneficiaries, pursuant to section 424.555(b), until he provided the information necessary to reactivate his billing privileges.”); Willie Goffney, DAB No. 2763 at 6 (“It is certainly true that [the petitioner] may not receive payment for claims for services during any period when his billing privileges were deactivated.”).

Petitioner’s billing privileges were deactivated on July 31, 2017, based on his failure to comply with a revalidation request.  This deactivation is not reviewable, as it is not an initial decision subject to review. 42 C.F.R. § 498.3(b) (listing the types of initial determinations subject to review); Ark. Health Grp., DAB No. 2929 at 12 (2019) (“Where, as here, the contractor deactivated Petitioner’s billing privileges, the issue for us (and the ALJ) is the effective date of reactivation.”); Frederick Brodeur, DAB No. 2857 at 12 (“A contractor’s deactivation decision is not an initial determination subject to ALJ or [DAB] review.”); Willie Goffney, DAB No. 2763 at 5 (stating no regulation provides appeal rights with respect to the contractor’s deactivation).  I can only review the effective date assigned for Petitioner’s reactivated billing privileges, and Petitioner does not argue, nor present any evidence, that he submitted a completed application for purposes of reactivation prior to May 14, 2018.  Pursuant to 42 C.F.R. § 424.520(d)(1), Noridian had a legitimate basis to deactivate his billing privileges from July 31, 2017 through May 13, 2018.  This billing privileges gap is based on the date of receipt of his last application for purposes of revalidation.  42 C.F.R. § 424.520(d)(1).

Petitioner has requested relief on equitable grounds.  I do not have the authority to grant such relief. US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the [DAB] is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).  I have no authority to declare statutes or regulations invalid.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (“An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground . . . .”). 

V. Conclusion

For the foregoing reasons, I find Petitioner’s billing privileges gap from July 31, 2017 through May 13, 2018 is correct.  The effective date of reactivation is May 14, 2018.

1. “Deactivate means that the [supplier’s] billing privileges were stopped but can be restored upon the submission of updated information.” 42 C.F.R. § 424.502 (emphasis added).
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