Cataract & Eye Disease Specialists, Inc., DAB CR5381 (2019)

DECISION

I grant summary judgment sustaining the determination of a Medicare contractor to reactivate the Medicare billing privileges of Petitioner, Cataract & Eye Disease Specialists, Inc., effective September 28, 2018.1

I. Background

Petitioner requested a hearing in order to challenge the effective date of reactivation of its Medicare billing privileges.  The Centers for Medicare & Medicaid Services (CMS) moved for summary judgment, filing a brief and 11 proposed exhibits.  Petitioner did not reply to the motion.  I sent an order to show cause to Petitioner asking it to explain its failure to respond.  Petitioner did not respond to the order to show cause, and I dismissed its hearing request.

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Petitioner then moved to vacate the dismissal, averring that it had assumed that the documents that it filed in connection with its request for a reconsidered determination of the contractor’s original determination were sufficient to state its position and arguments.  CMS opposed the motion.

I vacate my dismissal.  Although Petitioner should have made its position clear in response to my order to show cause, I see no prejudice to CMS in allowing Petitioner to address the merits of this case based on the documents and arguments that Petitioner filed relating to its request for a reconsidered determination.

CMS filed 11 proposed exhibits with its motion for summary judgment that it identified as CMS Ex. 1-CMS Ex. 11.  Petitioner’s exhibits are of record as part of its request for a reconsidered determination and as CMS Ex. 11.

It is unnecessary that I rule as to the admissibility of exhibits inasmuch as I grant CMS’s motion for summary judgment based on undisputed material facts and governing regulations.  I cite to some of the exhibits only for the purpose of illustrating those facts that are undisputed.

II. Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether the contractor properly established September 28, 2018, to be the effective date of reactivation of Petitioner’s Medicare billing privileges.

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

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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.

A contractor’s decision to deactivate a provider’s or supplier’s reimbursement privileges is not a determination that gives hearing rights to the affected individual or entity.  See 42 C.F.R. § 498.3(b) and (d).  Consequently, a provider or supplier whose Medicare billing privileges are deactivated may not challenge the contractor’s decision to deactivate.  I have no authority to decide that challenge.  I also lack the authority to decide a challenge to a contractor’s decision to reject an enrollment application.  42 C.F.R. § 424.525(d); see 42 C.F.R. § 498.3(b) and (d).

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 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); Willie Goffney Jr., M.D., DAB No. 2763 (2017).

Given that, the only question I may consider is whether the contractor properly assigned an effective reactivation date to a provider or a supplier whose billing privileges are deactivated.  The propriety of the contractor’s action in determining to reactivate is governed by 42 C.F.R. § 424.520(d)(1)-(2).  The regulation states that:

The effective date for billing privileges for . . . 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 earliest possible effective reactivation date that a contractor may assign to a provider or supplier whose billing privileges are deactivated is the date that the provider or supplier files a new enrollment application with the contractor that the contractor subsequently approves.  The contractor has no authority to assign a retroactive reactivation date to a provider or a supplier whose billing privileges were deactivated on a date prior to the date when the provider or supplier submits a new enrollment application for the purpose of reactivating his or her billing privileges.  Moreover, I do not have authority to order a contractor to assign a retroactive reactivation date.

The undisputed facts of this case are that on May 30, 2018, a Medicare contractor notified Petitioner that it must revalidate its Medicare enrollment information in order to maintain its Medicare billing privileges.  CMS Ex. 2.  Petitioner filed an application for

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revalidation of its privileges on August 17, 2018.  CMS Ex. 3; CMS Ex. 11 at 7.  The contractor found that in several respects the application was incomplete or needed updating.  It requested Petitioner to file supplemental information.  CMS Ex. 11 at 7.

Petitioner replied to the contractor on September 7, 2018.  CMS Ex. 5.  The contractor found that this submission did not provide it with all of the information that it had requested.  On September 26, 2018, the contractor rejected Petitioner’s revalidation application and deactivated Petitioner’s Medicare billing privileges effective September 25, 2018.  CMS Ex. 6; CMS Ex. 7.

Petitioner filed a second application for revalidation on September 28, 2018.  CMS Ex. 9.  The contractor approved this application and reactivated Petitioner’s billing privileges effective September 28, the date that Petitioner submitted the second application.2  CMS Ex. 10.

The consequence of the contractor’s deactivation of Petitioner’s billing privileges on September 25, 2018 and its subsequent reactivation of those privileges on September 28, 2018, is that Petitioner was denied Medicare reimbursement for any items or services that it provided on September 25, 26 and 27, 2018.  It is this gap in payment eligibility that Petitioner now challenges.

September 28, 2018, is the earliest date on which Petitioner’s billing privileges may be reactivated because that is the date on which the contractor received Petitioner’s application for reactivation that it subsequently approved.  Neither the contractor nor I may assign Petitioner a reactivation date that is retroactive to a date that is earlier than September 28.  Furthermore, I may not hear a challenge by Petitioner to the contractor’s rejection of its August 17, 2018 application for reactivation of billing privileges.  As I have explained, rejection of a revalidation application is not an initial determination that confers hearing rights.

Petitioner protests that its failure to complete its August 17, 2018 application to the contractor’s satisfaction is the contractor’s fault.  It asserts that, after the contractor informed Petitioner that its August 17 application was not complete, Petitioner attempted to obtain guidance from the contractor concerning what additional information it needed to supply.  CMS Ex. 11 (Petitioner’s request for a reconsidered determination).  However, according to Petitioner, the contractor provided no response to Petitioner’s

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request for guidance and it therefore assumed that its August 17, 2018 application, as supplemented by Petitioner on September 7, 2018, was complete and satisfactory to the contractor.  Petitioner contends that the contractor lulled it into complacency when the contractor did not respond to Petitioner’s request for guidance.

I lack authority to hear and decide this argument for two reasons.  First, it constitutes a challenge to the contractor’s rejection of Petitioner’s August 17, 2018 revalidation application.  Second, it is an equitable argument that I lack authority to hear and decide.  Effectively, Petitioner contends that the contractor, by not responding to Petitioner’s request for guidance, treated it unfairly.  As a general rule, equitable challenges to CMS’s determinations are not reviewable.  U.S. Ultrasound, DAB No. 2302 at 8 (2010).

• 1. The contractor approved Petitioner’s application on October 23, 2018, but, as I explain below, the effective date of reactivation is the date that Petitioner filed it, September 28, 2018.
• 2. The contractor’s reactivation letter states that Petitioner would have a gap in billing “through September 28, 2018,” which suggests that the contractor was not reactivating Petitioner’s billing privileges until September 29, 2018. CMS Ex. 10 at 1. That is incorrect, as Petitioner’s billing privileges were reactivated the date the contractor received the application it could process to approval, September 28. See CMS Ex. 9 at 1; CMS Ex. 1 at 2.