John B. Sorensen, M.D., DAB CR5300 (2019)

DECISION

Petitioner's Medicare billing privileges were deactivated on July 7, 2017, as a result of his failure to timely comply with a request that he revalidate his Medicare enrollment. For the reasons discussed below, I conclude that the effective date of Petitioner's reactivated Medicare billing privileges remains August 30, 2017.

I. Background and Procedural History

On February 8, 2017, Noridian Healthcare Solutions (Noridian), a Medicare administrative contractor, sent letters to Petitioner, a general surgeon, requesting that he revalidate his Medicare enrollment no later than April 30, 2017. Centers for Medicare & Medicaid Services (CMS) Exhibits (Exs.) 2, 3; see CMS Ex. 8 at 1. Noridian sent the letters to separate addresses in Salt Lake City, Utah.1 CMS Exs. 2, 3. Noridian

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instructed Petitioner to "update or confirm all the information in [his] record, including [his] practice locations and reassignments." CMS Exs. 2 at 1; 3 at 1. Noridian cautioned Petitioner that a "[f]ailure to respond to this notice will result in a hold on [his] payments, and possible deactivation of [his] Medicare enrollment," and further warned that, in the event of deactivation, "[Petitioner] will not be paid for services rendered during the period of deactivation" which "will cause a gap in [his] reimbursement." CMS Exs. 2 at 1; 3 at 1.

While the revalidation request was pending, Noridian granted Petitioner's request to reassign his benefits to Central Valley Medical Center on March 15, 2017. CMS Ex. 4 at 1.

On May 22, 2017, Noridian sent correspondence to Petitioner, at the aforementioned addresses in Salt Lake City, informing him that it had not received a revalidation application by the April 30, 2017 deadline. CMS Exs. 5 at 1; 6 at 1. Noridian again warned Petitioner that his billing privileges could be deactivated if he did not comply with the revalidation request, which would cause a gap in reimbursement. CMS Exs. 5 at 1; 6 at 1. The letter instructed Petitioner to revalidate his own record, and that he should also revalidate his reassignments to Ihc Health Services, Inc. and University of Utah Surgical Associates. CMS Exs. 5 at 1; 6 at 1. Because Petitioner did not submit a revalidation application in response to the contractor's request, Noridian deactivated Petitioner's billing privileges effective July 7, 2017. CMS Ex. 7 at 1.

Petitioner submitted a revalidation application, Form CMS-855I, via the internet-based Provider, Enrollment, Chain, and Ownership System (PECOS) that Noridian received on August 30, 2017. CMS Ex. 8. Petitioner updated his enrollment information, to include his correspondence address and contact person. CMS Ex. 8. Petitioner also submitted, via PECOS, a Form CMS-855R application to reassign his benefits to Central Valley Medical Center. CMS Ex. 9 at 2; see CMS Ex. 8 at 4.

On September 18, 2017, Noridian informed Petitioner that it had reactivated his billing privileges, effective August 30, 2017. CMS Ex. 10 at 2. Noridian explained that it had changed his correspondence contact information listed in his enrollment record, and that he had a "lapse in coverage" from "July 7, 2017 thru [sic] August 30, 2017." CMS Ex. 10 at 2.

Noridian received Petitioner's request for reconsideration, dated September 27, 2017, in which Petitioner disputed the effective date assigned for his reactivated billing privileges. CMS Ex. 11. Petitioner argued, through an authorized representative, that he had

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submitted both a Form CMS-855I (enrollment application) and a Form CMS-855R (reassignment of benefits application) when he joined Central Valley Medical Center. CMS Ex. 11 at 1 (stating "Dr. Sorensen joined our facility on March 1, 2017. An 855I and 855R was [sic] completed and Dr. Sorensen was effective March 1, 2017 with our facility under group NPI 1992724975.").

Noridian issued a reconsidered determination on October 12, 2017, in which it maintained the August 30, 2017 effective date of Petitioner's reactivated billing privileges. CMS Ex. 1 at 1. Noridian explained that it received the enrollment application for purposes of reactivation on August 30, 2017. CMS Ex. 1 at 2.

Petitioner submitted a request for an administrative law judge (ALJ) hearing that was received on November 30, 2017. ALJ Leslie A. Weyn issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) on December 7, 2017, at which time she directed the parties to file their respective pre-hearing exchanges.2 CMS filed a combined motion to dismiss and in the alternative, a motion for summary judgment, in lieu of a pre-hearing brief (CMS Br.), along with eleven proposed exhibits (CMS Exs. 1-11). Petitioner, through counsel, filed an opposition to CMS's motions along with six exhibits (P. Exs. 1-6).

Petitioner submitted his own written direct testimony (P. Ex. 6). A hearing is unnecessary because CMS has not requested an opportunity to cross-examine Petitioner. Pre-Hearing Order, §§ 8-10. I consider the record in this case to be closed, and the matter is ready for a decision on the merits.3

II. Issue

Whether CMS had a legitimate basis to assign Petitioner an August 30, 2017 effective date for his reactivated billing privileges.

III. Jurisdiction

I have jurisdiction to decide this case. 42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2).

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IV. Findings of Fact, Conclusions of Law, and Analysis4

1. On February 8, 2017, Noridian requested that Petitioner revalidate his Medicare enrollment no later than April 30, 2017.

2. Petitioner did not respond to the revalidation request, and Noridian deactivated Petitioner's billing privileges effective July 7, 2017.

3. Noridian received Petitioner's enrollment and reassignment of benefits applications for purposes of revalidation and reactivation on August 30, 2017, and Noridian ultimately processed those applications to approval.

4. An effective date earlier than August 30, 2017, is not warranted for the reactivation of Petitioner's Medicare enrollment and billing privileges.

As a physician, Petitioner is a "supplier" for purposes of the Medicare program. See CMS Ex. 8 at 1; see also 42 U.S.C. § 1395x(d); 42 C.F.R. § 400.202 (definition of supplier); 42 C.F.R. § 498.2. A "supplier" furnishes services under Medicare and the term applies to physicians or other practitioners that 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." 42 C.F.R. § 424.510(a)(1); 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.

CMS is authorized to deactivate an enrolled supplier's Medicare billing privileges if the enrollee does not provide complete and accurate information within 90 days of a request for such information. 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); Urology

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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."). Further, and quite significantly, the Departmental Appeals Board (DAB) has unambiguously 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); 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).

On February 8, 2017, Noridian mailed letters to Petitioner directing him to revalidate his Medicare enrollment record no later than April 30, 2017, and Noridian warned that Petitioner's failure to revalidate could result in deactivation of his Medicare billing privileges, with a resulting gap in reimbursement. CMS Exs. 2, 3. Noridian thereafter deactivated Petitioner's billing privileges on July 7, 2017, after Petitioner did not revalidate his enrollment. CMS Ex. 7. In his request for hearing, Petitioner does not specifically argue that the effective date assigned for his reactivated billing privileges, August 30, 2017, is erroneous; rather, Petitioner contends that his billing privileges should not have been deactivated in the first place, arguing that "all correspondence notices were sent to a previous employer" and he was "unaware that revalidation was necessary." Petitioner was responsible for updating his enrollment record with any changes to his contact information, and he acknowledged that the revalidation request letters were sent to "an out-of-date address." P. Br. at 2. Petitioner did not update his individual enrollment record to reflect his current correspondence address until well after his billing privileges had been deactivated. See CMS Ex. 8. Any failure of Petitioner to timely receive the revalidation request resulted from his own failure to make sure his individual enrollment record contained up-to-date contact information.5

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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)."). Section 424.520(d) states that "[t]he effective date for billing privileges for physicians, non-physician practitioners, physician and non-physician practitioner organizations . . . 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. 7), and, on August 30, 2017, Petitioner electronically filed applications for purposes of revalidation and reactivation that were processed to approval. CMS Exs. 8, 9; see CMS Ex. 1 at 2. Based on the August 30, 2017 receipt date of the enrollment applications that were processed to approval, Noridian correctly assigned an August 30, 2017 effective date for Petitioner's billing privileges. 42 C.F.R. § 424.520(d); 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 the language of section 424.520(d) and compelling evidence that the provision should apply to reactivations."); 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."); 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.").

Petitioner challenges the August 30, 2017 effective date of his reactivated billing privileges and resulting gap in his Medicare billing privileges. The deactivation of Petitioner's billing privileges on July 7, 2017, based on his failure to comply with a revalidation request, is not reviewable. Willie Goffney, DAB No. 2763 at 5 (stating no regulation provides appeal rights with respect to the contractor's deactivation); Frederick Brodeur, DAB No. 2857 at 12 ("A contractor's deactivation decision is not an initial determination subject to ALJ or [DAB] review."). I can only review the effective date assigned for Petitioner's reactivated billing privileges, and pursuant to 42 C.F.R. § 424.520(d), Noridian had a legitimate basis to assign an effective date of August 30, 2017, for Petitioner's reactivated billing privileges based on the date of receipt of his internet-based enrollment applications. Nonetheless, Petitioner challenges his deactivation. P. Ex. 1.

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While Petitioner argues that CMS uses a "hyper-technical reading of the relevant regulations" to "deprive [him] from being compensated for work that he performed" (P. Br. at 1), I note that the requirement to maintain up-to-date enrollment information is a foundational requirement for Medicare suppliers. See, e.g., 42 C.F.R. §§ 424.515 (revalidation requirements), 424.516(d) (requirement to report changes in enrollment information within 30 or 90 days); 424.535(a)(9) (allowing revocation, and not just deactivation, of enrollment based on the failure to timely report certain changes in enrollment information).

Petitioner also argues that the "application process for reassignment contained substantially the same information requested by CMS for revalidation," which appears to be an argument that the submission of a Form CMS-855R, in and of itself, should suffice for purposes of revalidating enrollment.6 The Form CMS-855R, on its own, is insufficient to revalidate enrollment or update the contact information in an enrollment record. The limited purpose of the Form CMS-855R is clearly apparent on the first page of the five-page form: "Complete this application if you are reassigning your right to bill the Medicare program and receive Medicare payments for some or all of the services you render to Medicare beneficiaries, or are terminating a currently established reassignment of benefits." See P. Ex. 1 at 2. A Form CMS-855I, which is far more comprehensive at 25 pages in length, is used to revalidate and update an enrollment record. See https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/MedicareProviderSupEnroll/EnrollmentApplications.html (last visited April 5, 2019). Further, the first page of the Form CMS-855I instructs an individual practitioner to complete the form when "changes to your enrollment information (e.g., you have added or changed a practice location)" are made. See Form CMS-855I, https://www.cms.gov/Medicare/CMS-Forms/CMS-Forms/Downloads/cms855i.pdf (last visited April 5, 2019). Likewise, the Form CMS-855I indicates it is to be used for an individual practitioner "[c]urrently enrolled in Medicare and you received notice to revalidate your enrollment." Id. Petitioner's request to reassign his benefits on March 1, 2017, was neither a response to the revalidation request nor an update of his contact information in his enrollment record. Petitioner's arguments are without merit, and he has not shown that Noridian lacked a legitimate basis to assign an August 30, 2017 effective date for his reactivated billing privileges.

To the extent that Petitioner's request for relief is based on principles of equitable relief, I cannot 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."). Petitioner points to no authority by which I may grant him relief from the applicable regulatory requirements,

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and I have no authority to declare statutes or regulations invalid or ultra vires. 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 uphold the August 30, 2017 effective date of Petitioner's reactivated Medicare billing privileges.

• 1. Despite citing to Noridian's two letters (CMS Exs. 2, 3), Petitioner claims the letters were mailed to the same address. Petitioner's Brief (P. Br.) at 2 ("Noridian sent two notices, both to the same address, purporting to inform Dr. Sorensen that he was required to revalidate his Medicare enrollment...."). I note that one letter was addressed to P.O. Box 27128, Salt Lake City, UT, 84127-1028, and the other letter was addressed to P.O. Box 413035, Salt Lake City, UT, 84141-3035. CMS Exs. 2 at 1; 3 at 1. Contrary to Petitioner's claim, Noridian sent the letters to two different addresses.
• 2. This case was reassigned to me on March 8, 2019.
• 3. Because a hearing is unnecessary, I address the matter on the merits rather than addressing CMS's motions for dismissal and summary judgment.
• 4. Findings of fact and conclusions of law are in italics and bold font.
• 5. Even if Petitioner "was transitioning from working at Desert View Hospital in Pahrump, Nevada to Central Valley Medical Center ... in Nephi, Utah" when Noridian sent the revalidation request on February 8, 2017 (P. Br. at 2), Petitioner nonetheless still did not update his individual enrollment record for six more months, and only did so following the deactivation of his billing privileges. See CMS Ex. 8 at 1.
• 6. Petitioner has apparently abandoned the position he took in his request for reconsideration that he had submitted a Form CMS-855I when he joined Central Valley Medical Center on March 1, 2017. CMS Ex. 11 at 1.