Farzana Naqvi, MD & Syed Naqvi, MD, DAB CR5360 (2019)

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DECISION

The effective date of reactivation of Petitioner Farzana Naqvi’s (Petitioner Farzana) billing privileges is May 1, 2017. The effective date of reactivation of Petitioner Syed Naqvi’s (Petitioner Syed) billing privileges is April 3, 2017. Petitioners are entitled to a period for retrospective billing beginning 30 days prior to the effective date of the reactivation of each Petitioner’s billing privileges.

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I. Background and Findings of Fact

By letter dated September 12, 2017, received at the Civil Remedies Division (CRD) of the Departmental Appeals Board on September 18, 2017, Petitioners requested administrative law judge (ALJ) review of the August 24, 2017 reconsidered determinations of Noridian Healthcare Solutions, the Medicare Administrative Contractor (MAC). Request for Hearing (RFH) at 1.

Petitioner Farzana’s reconsidered determination upheld an initial determination by the MAC that the reactivation of her billing privileges was effective on May 1, 2017, a date after the date of the deactivation of Petitioner’s billing privileges on April 3, 2017. CMS Exhibit (Ex.)2 at 1-2. Petitioner Farzana complains that the gap in billing privileges from April 3 through April 30, 2017, resulted in Petitioner Farzana not being paid for services rendered to Medicare-eligible beneficiaries during the gap period. RFH at 2.

Petitioner Syed’s reconsidered determination upheld a reactivation effective date of April 3, 2017, a date after the date of the deactivation of Petitioner’s billing privileges on March 3, 2017. CMS Ex.1 at 1-2. Petitioner Syed complains that the gap in billing privileges from March 3 through April 2, 2017, resulted in Petitioner Syed not being paid for services rendered to Medicare-eligible beneficiaries during the gap period. RFH at 2.

CMS filed a motion for summary judgment (CMS Motion) with CMS Exs.1 through 4 on October 26, 2017. On December 7, 2017, Petitioners filed a response (P. Response) with no exhibits. Petitioners did not object to CMS Exs.1 through 4 and they are admitted and considered as evidence.

The material facts are not disputed. On and before April 3, 2017, Petitioner Farzana was enrolled in Medicare with billing privileges. The MAC deactivated her billing privileges effective April 3, 2017. Subsequently, Petitioner Farzana submitted a revalidation application (CMS-855I) that was received by the MAC on May 1, 2017, and that application was processed to approval by the MAC. The MAC reactivated Petitioner Farzana’s billing privileges effective May 1, 2017, based on the CMS-855I received on that date. The MAC’s action resulted in a gap in Petitioner Farzana’s billing privileges from April 3 through April 30, 2017 (gap period). During the gap period, Petitioner Farzana was unable to obtain reimbursement from Medicare for services she delivered to Medicare-eligible beneficiaries. CMS Ex. 2 at 1-2.

On and before March 3, 2017, Petitioner Syed was enrolled in Medicare with billing privileges. The MAC deactivated Petitioner Syed’s billing privileges effective March 3, 2017. Subsequently, he submitted a revalidation application (CMS-855I) that was received by the MAC on April 3, 2017, and that application was processed to approval by the MAC. The MAC reactivated Petitioner Syed’s billing privileges effective April 3, 2017, based on the CMS-855I received on that date. The MAC’s action resulted in a gap

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in Petitioner Syed’s billing privileges from March 3, 2017 through April 2, 2017. During the gap period, Petitioner Syed was unable to obtain reimbursement from Medicare for services he delivered to Medicare-eligible beneficiaries.2 CMS Ex. 1 at 9.

Petitioners Farzana and Syed both remained enrolled in Medicare during the gap period. CMS Response to Specified Issues.

II. Issues, Conclusions of Law, and Analysis

A. Issues

Whether I have jurisdiction to review the reconsidered determination by CMS or a MAC of the effective date of reactivation of Medicare billing privileges, i.e., the right to file claims with and to receive payment from Medicare;

Whether summary judgment is appropriate; and

The effective date of reactivation.

B. Conclusions of Law and Analysis

My conclusions of law are set forth in bold text followed by my analysis applying law and policy to the undisputed facts.

1. There is authority for ALJ review in this case, but it is limited to the effective date of reactivation of Petitioners’ billing privileges, i.e., the date of reactivation of Petitioners’ right to submit claims to and receive payment from Medicare for care and services delivered to Medicare-eligible beneficiaries.

2. Petitioners have no right to review of the determination of the MAC or CMS to deactivate Petitioners’ billing privileges.

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This case involves a gap in Petitioners’ billing privileges that was created when the MAC deactivated Petitioners’ billing privileges, and then reactivated Petitioners’ billing privileges on a later date. Petitioners’ real grievance is that CMS and the MAC decline to pay Petitioners for services rendered to Medicare eligible beneficiaries during the gap period, even though there is no dispute that Petitioners were enrolled in Medicare during the gap period. RFH; P. Response.

I conclude Petitioners have no right to ALJ review of the MAC determination to deactivate their billing privileges. Petitioners also have no right to ALJ review in this forum of the denial of payment of their claims during the gap period. However, Petitioners do have a right to ALJ review of the reconsidered determination of the effective date of the reactivation of Petitioners’ billing privileges.

CMS or the MAC may deactivate the billing privileges of a provider or supplier for failure to do any of the following:

1. Submit a claim for 12 consecutive months;

2. Report a change in enrollment information within 90 days of the date of the change, except a change in ownership or control, which must be reported within 30 days; and

3. Give CMS or the MAC complete and accurate information and all supporting documents within 90 calendar days of a request from CMS or the MAC to submit an enrollment application or certify the accuracy of its enrollment information.

42 C.F.R. § 424.540(a).3 A provider or supplier deactivated for failure to submit a claim for 12 consecutive months may reactivate billing privileges by recertifying that all information on file with CMS is correct; providing any missing information; meeting all Medicare enrollment requirements; and being prepared to submit a valid claim. 42 C.F.R. § 424.540(b)(2). When deactivation is based on failure to timely notify CMS or the MAC of a change of information or to timely respond to a request for information,

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a provider or supplier must complete and submit a new enrollment application to reactivate its billing privileges, unless CMS or the MAC permit the provider or supplier to recertify that its enrollment information on file is correct. 42 C.F.R. § 424.540(b)(1). Deactivation of Medicare billing privileges is an action to protect the provider or supplier from misuse of its billing privileges and to protect the Medicare Trust funds from unnecessary overpayments. 42 C.F.R. § 424.540(c).

There is no right to ALJ review under 42 C.F.R. pt. 498, of a CMS or MAC determination to deactivate a provider’s or supplier’s billing privileges. The relevant regulation concerning appeal rights provides only that the provider or supplier may submit a rebuttal to CMS or the MAC under 42 C.F.R. § 405.374 (opportunity for rebuttal required for suspension of payments, offset, or recoupment). 42 C.F.R. § 424.545(b).

The Secretary of the Department of Health & Human Services (the Secretary) promulgated regulations at 42 C.F.R. §§ 424.545 and 498.5 that specify review and appeal rights in provider and supplier enrollment cases. The Secretary has not specifically stated that a provider or supplier has a right to ALJ review of CMS or MAC determinations related to the reactivation of billing privileges. 42 C.F.R. §§ 424.70-.90, 424.545, 498.3(b), 498.5. However, 42 C.F.R. § 498.3(b)(15) provides that “[t]he effective date of a Medicare provider agreement or supplier approval” are initial determinations subject to review by an ALJ. The Departmental Appeals Board (Board) has given an expansive interpretation to 42 C.F.R. § 498.3(b)(15) and found a right to ALJ review of the effective date of enrollment in Medicare as well as the effective date of the reactivation of billing privileges. See, e.g., Victor Alvarez, M.D., DAB No. 2325 at 3-10 (2010) (determination of effective date of enrollment in Medicare is an initial determination subject to ALJ review and Board appeal); Urology Grp. of NJ, LLC, DAB No. 2860 at 6 (2018) (no right to review of a CMS or MAC determination to deactivate billing privileges but right to review of the determination of the effective date of reactivation).

Applying the reasoning of the Board in Alvarez and Urology, I conclude that a supplier has the right to ALJ review of the CMS or MAC determination of the effective date of reactivation of billing privileges. Furthermore, the only determination of CMS or the MAC that is subject to my review in a provider and supplier enrollment case is the reconsidered determination. 42 C.F.R. § 498.5(l)(1)-(2); Neb Grp. of Ariz. LLC, DAB No. 2573 at 7.

The Board in Urology also pointed out that Medicare claim reimbursement is not subject to review by an ALJ in this forum. DAB No. 2860 at 6-7.

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3. Summary Judgment is appropriate.

I have concluded, based on the rationale of the Board in prior cases, that Petitioners have a right to ALJ review of the reconsidered determination of the effective date of reactivation of their right to file claims with and receive payment from Medicare. I also conclude that there are no disputed issues of material fact that require a hearing in this case; CMS is entitled to judgment as a matter of law; and summary judgment is appropriate.

Petitioners are entitled to a hearing on the record before an ALJ under the Act. Act §§ 205(b); 1866(h)(1), (j); Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004). However, when summary judgment is appropriate, no hearing is required. The Board has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt.498. See, e.g., Crestview Parke, 373 F.3d at 748-51; Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997). The Board has accepted that Fed. R. Civ. P.56 and related cases provide useful guidance for determining whether summary judgment is appropriate. I advised the parties in the Acknowledgement and Prehearing Order (Prehearing Order) that summary judgment is an available procedural device and that the law as it has developed related to Fed. R. Civ. P.56 will be applied. Prehearing Order ¶¶II.D. & G. Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 5 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 5 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein).

4. CMS’s motion to dismiss Petitioner Syed’s request for hearing is denied.

The regulations allow CMS, or its contractor, to reopen and revise an initial determination. 42 C.F.R. §§ 498.30-.32. CMS may reopen an initial or reconsidered determination within 12 months of the initial determination. 42 C.F.R. § 498.30. To reopen and revise, CMS must give the affected party notice of reopening and any revision, and the basis for the revised determination. 42 C.F.R. § 498.32(a). A reopened and revised determination is binding, unless a hearing before an ALJ is requested or there is a further revised determination. 42 C.F.R. § 498.32(b).

CMS argues that I should dismiss Petitioner Syed’s request for hearing because he failed to request a hearing following the issuance on September 29, 2017 of a revised initial determination (CMS Ex. 4). CMS Motion at 6-7. However, the September 29, 2017 letter does not meet the requirements of 42 C.F.R. § 498.32(a) for a reopened and revised

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determination because the MAC does not specifically state that it is reopening and revising its May 5, 2017 notice of initial determination, or more importantly the reconsidered determination issued on August 24, 2017 that effectively corrected the error in the MAC’s May 5, 2017 initial determination and superseded the initial determination. CMS does not argue that either CMS or the MAC actually reopened and revised the reconsidered determination, the determination subject to my review. Neb Grp., DAB No. 2573 at 7. Furthermore, Petitioner Syed had already requested ALJ review and the matter was pending before me when the MAC issued the September 29, 2017 notice. CMS Ex. 4. It is clear that the September 29, 2017 MAC letter merely confirmed Petitioner Syed’s effective date of reactivation of April 3, 2017, and corrected the error in the MAC’s initial determination that was identified by the reconsidered determination, i.e., the gap in billing privileges ran from March 3, 2017 through April 2, 2017 rather than through April 3, 2017. CMS Ex. 4.

5. The effective dates of reactivation of Petitioners’ billing privileges are the dates on which the MAC received the applications that it processed to approval, and those dates are May 1, 2017 for Petitioner Farzana and April 3, 2017 for Petitioner Syed.

6. Current CMS policy requires a period of retrospective billing related to the reactivation of Medicare billing privileges.

The Secretary’s regulations do not specify how to determine an effective date for the reactivation of Medicare billing privileges. 42 C.F.R. pt.424, subpt. P. However, CMS has addressed the determination of the effective date of reactivation by policy.

CMS policies regarding deactivations and reactivations of billing privileges in effect at the time of the initial and reconsidered determinations in this case are in the Medicare Program Integrity Manual (MPIM), CMS Pub. 100-08, ch. 15, §§ 15.27.1.1 (deactivation) and 15.27.1.2 (reactivation) (rev. 561, eff. Mar.18, 2015).4 MPIM § 15.27.1.2 provides that the effective date of reactivation is the date the MAC received the reactivation application that the MAC processed to completion.

The version of MPIM § 15.27.1.2 in effect at the time of the initial and reconsidered determinations did not specifically address retrospective billing. However, effective March 12, 2019, CMS changed its policy and now requires that contractors grant retrospective billing privileges in accordance with MPIM § 15.17(B) when reactivating billing privileges of a provider or supplier described in that section. MPIM § 15.27.1.2

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(rev. 865, eff. Mar.12, 2019). CMS adopted this new policy while this case was pending ALJ review and before a final administrative decision was issued. Based on the CMS language making retrospective billing mandatory in the situations described in MPIM § 15.17(B), I conclude it is appropriate to implement the current CMS policy in this case. See Charles H. Koch, Jr. & Richard Murphy, Admin. L. & Prac. § 4:22 (3d ed. 2019) (generally agency must obey own rules and policies, particularly when intended to be binding); Charles H. Koch, Jr. & Richard Murphy, Admin. L. & Prac. § 5:68 (3d ed. 2019) (generally a rule or statement of policy should be given equal effect by all agency adjudicators). Petitioners are physicians and there is no dispute that they were enrolled in Medicare during the gap period and met all requirements for enrollment. Therefore, Petitioners are entitled to retrospective billing privileges for up to 30 days prior to the effective date of reactivation of billing privileges for services rendered to Medicare-eligible beneficiaries during that 30-day period. MPIM § 15.17(B)(1).

Applying the regulations in these cases is straightforward. There is no dispute the MAC deactivated Petitioner Farzana’s Medicare billing privileges on April 3, 2017 and Petitioner Syed’s Medicare billing privileges on March 3, 2017. There is also no dispute that on May 1, 2017, the MAC received Petitioner Farzana’s application to reactivate her Medicare billing privileges, and on April 3, 2017 the MAC received Petitioner Syed’s application to reactivate his Medicare billing privileges. Accordingly, the effective dates of reactivation may only be May 1, 2017 for Petitioner Farzana and April 3, 2017 for Petitioner Syed. The period for retrospective billing begins 30 days prior to the effective date of reactivation.

Petitioners argue in their Request for Hearing that they had contracted with a third‑party billing company that was responsible for submitting their Medicare revalidation applications, and it was due to the “negligence” of the billing company that they did not timely submit their enrollment applications. Petitioners argue that they never received the notices to revalidate their respective Medicare enrollments because they were sent to their billing company. RFH at 1-2; P. Response. I accept these assertions as true for purposes of summary judgment but they relate to the decision to deactivate which is not subject to my review. The fact Petitioners were unaware of the notices to revalidate admittedly received by their billing company, is not material to the determination I am required to make in these cases, which is the effective date of the reactivation of Petitioners’ billing privileges. In this case, Petitioners do not dispute the material facts that the MAC received Petitioner Farzana’s reactivation application on May 1, 2017 and Petitioner Syed’s reactivation application on April 3, 2017. The date of receipt of the reactivation application by the MAC controls.

Petitioners also argue that the billing gaps placed tremendous economic strain on their practice causing irreparable harm. RFH at 2. I construe these arguments to be for equitable relief or for estoppel, and I have no authority to grant such relief. US Ultrasound, DAB No. 2302 at 8 (2010). To the extent Petitioners’ argument may be

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construed as being for estoppel, I note that estoppel against the federal government, if available at all, is presumably unavailable absent “affirmative misconduct,” such as fraud. See, e.g., Pac. Islander Council of Leaders, DAB No. 2091 at 12 (2007); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990). Petitioners’ arguments and assertions, even though accepted as true for purposes of summary judgment, establish no basis for relief.

III. Conclusion

For the foregoing reasons, I conclude that the effective date of reactivation of Petitioner Farzana’s billing privileges is May 1, 2017, and the effective date for Petitioner Syed’s billing privileges is April 3, 2017.

• 1. This case as originally docketed included “Naqvi and Naqvi M.D. Inc.  (NPI:  1740424118).”  On October 6, 2017, the Centers for Medicare & Medicaid Services (CMS) filed a motion to correct the case caption to properly list the National Provider Identifiers (NPIs) for each Petitioner and to delete the corporate name on grounds that no reconsidered determination had been issued related to the corporation.  Petitioner did not oppose the CMS motion and the caption of this case is corrected as requested by CMS.
• 2. In the May 5, 2017 notice of initial determination, the MAC incorrectly stated that Petitioner Syed’s lapse in coverage -- the billing gap -- was from March 3 through April 3, 2017. CMS Ex. 1 at 9. In its August 24, 2017, reconsidered determination, the MAC corrected this error by notifying Petitioner Syed that the “correct end date should be April 2, 2017” because the revalidation application was received on April 3, 2017. CMS Ex. 1 at 2. The MAC subsequently issued another letter to Petitioner Syed on September 29, 2017 that also stated that Petitioner Syed’s billing gap was from March 3 through April 2, 2017. CMS Ex. 4
• 3. Citations are to the October 1, 2016 revision of the Code of Federal Regulations (C.F.R.), which was in effect at the time of the initial determination, unless otherwise indicated. An appellate panel of the Departmental Appeals Board (Board) concluded in Mark A. Kabat, D.O., DAB No. 2875 at 9-11 (2018), that the applicable regulations are those in effect at the time of the initial determination. However, the Board previously concluded that the only determination subject to my review in a provider and supplier enrollment case such as this is the reconsidered determination. Neb Grp. of Ariz. LLC, DAB No. 2573 at 7 (2014).
• 4. The current CMS policy is set forth in MPIM ch. 15 §§ 15.27.1.1-.2 (rev. 865, eff. Mar. 12, 2019) and provides for retrospective billing in accordance with MPIM ch. 15 § 15.17(B).