Madeline Cicero, RD, DAB CR5327 (2019)

DECISION

I sustain the determination of a Medicare contractor, as affirmed on reconsideration, to reactivate the billing privileges of Petitioner, Madeline Cicero, RD, effective November 8, 2018.

I. Background

The Centers for Medicare & Medicaid Services (CMS) moved for summary judgment.  With its motion CMS filed nine proposed exhibits that it identified as CMS Ex. 1-CMS Ex. 9.  Petitioner opposed the motion and filed a single exhibit that she identified as P. Ex. 1.

CMS objected to my receiving P. Ex. 1 on the ground that Petitioner filed it untimely.  It is unnecessary that I address CMS’s objection because I grant summary judgment based on undisputed facts.  I do not receive the parties’ exhibits into evidence although I cite to some of them in order to illustrate facts that are not in dispute or, in the case of Petitioner’s objections to summary judgment, not relevant to my decision.

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II. Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether the Medicare contractor properly reactivated Petitioner’s Medicare billing privileges effective November 8, 2018.

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 supplier for any of the following reasons: . . .
(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) When deactivated for any reason other than nonsubmission of a claim, the provider or supplier must complete and submit a new enrollment application to reactivate its Medicare billing privileges or, when deemed appropriate, at a minimum, recertify that the enrollment information currently on file with Medicare is correct. . . .

The regulation plainly tells a provider or supplier that it will be deactivated by CMS if CMS directs it to submit an enrollment application and the provider or supplier fails to do so within 90 calendar days.  Additionally, the regulation puts the onus on the deactivated provider or supplier to submit a new Medicare enrollment application if it desires to reactivate its participation.

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 that the contractor receives a re-enrollment application that it processes to completion.  Medicare Program Integrity Manual (MPIM), § 15.27.1.2.  That guidance is consistent with regulatory requirements governing the effective date of participation of newly participating suppliers and providers.  42 C.F.R. § 424.520(d).

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A decision by a Medicare contractor to deactivate a supplier’s or provider’s billing privileges is not an appealable determination that confers hearing rights.  See 42 C.F.R. §§ 498.3; 498.5.1  My authority in hearing and deciding a challenge to a reactivation determination, such as the one made in this case, is strictly limited to the question of whether the effective date of reactivation comports with the regulatory requirements that I outline above.

The undisputed facts are that on November 14, 2017, the contractor sent a letter to Petitioner advising her that she needed to revalidate her Medicare enrollment.  CMS Ex. 2 at 1.  The letter further advised Petitioner that the contractor would deactivate her Medicare billing privileges if she did not timely revalidate her enrollment.  Id.

The contractor mailed the letter to the address that Petitioner had on file with the contractor as her mailing address.  Petitioner did not respond to this letter.  On August 2, 2018, the contractor sent a letter to Petitioner advising her that it would hold her Medicare payments due to her failure to revalidate her Medicare enrollment.  CMS Ex. 3 at 1.  On September 10, 2018, the contractor notified Petitioner that it had deactivated her Medicare billing privileges.  CMS Ex. 4 at 1.

On November 8, 2018, Petitioner filed an application to revalidate her billing privileges.  CMS Ex. 5 at 55.  The contractor approved this application and reactivated Petitioner’s billing privileges effective November 8, 2018.  CMS Ex. 6.

The consequence of the deactivation of Petitioner’s billing privileges and the subsequent reactivation is that Petitioner may not receive payment for Medicare services that she provided during a period that runs from September 10, 2018 until November 8, 2018.

These undisputed material facts plainly establish that the contractor correctly assigned an effective date of November 8, 2018, to Petitioner for reactivation of her billing privileges.  It assigned that date based on the revalidation application that Petitioner filed on November 8.  Applicable regulations preclude the contractor from assigning an earlier effective reactivation date to Petitioner.  42 C.F.R. § 424.520(d).

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Petitioner avers that at some date prior to November 14, 2017, she changed her mailing address to one that is different from the address that she had on file with the contractor.  She concedes that she did not update her Medicare enrollment information to show her new mailing address.  However, she avers that other information on file with the contractor informed the contractor of her new address.  She argues that the contractor sent its November 14 notice to the wrong address (the official mailing address that Petitioner had on file with the contractor).  She asserts that the contractor should have realized, from other documents that she had filed with another contractor, that she had a different mailing address.  Petitioner contends that the contractor should have corrected its alleged error and sent a notice to her correct address when the notice that the contractor sent to Petitioner’s official mailing address was returned as undeliverable.

It is not necessary that I decide whether Petitioner’s fact assertions are correct because they are not relevant to my decision.  Effectively, Petitioner challenges the contractor’s decision to deactivate her billing privileges.  As I have stated, Petitioner has no right to challenge the deactivation and I have no authority to hear her arguments about the propriety of that action by the contractor.

• 1. The regulations provide a separate avenue for challenging deactivations, authorizing the deactivated provider or supplier to “file a rebuttal in accordance with [42 C.F.R.] § 405.374 . . . .”  42 C.F.R. § 424.535(b).  A “rebuttal” is a “statement . . . as to why [the deactivation] should not be put into effect” that is submitted to a Medicare contractor, 42 C.F.R. § 405.374(a), not an appeal submitted to an administrative law judge.