Dani Vedros, LCSW, DAB CR5658 (2020)

DECISION

The effective date of reactivation of Petitioner's Medicare billing privileges is April 9, 2018.  Petitioner is entitled to a period for retrospective billing beginning 30 days prior to the effective date of reactivation of Petitioner's billing privileges.

I.  Background and Findings of Fact

On September 17, 2018, Petitioner requested administrative law judge (ALJ) review of the August 24, 2018 reconsidered determination of Palmetto GBA, a Medicare Administrative Contractor (MAC).  Request for Hearing (RFH).  The reconsidered determination dated August 24, 2018, as revised by an amended reconsidered determination dated November 2, 2018, upheld an initial determination by the MAC that the reactivation of Petitioner's billing privileges was effective on April 9, 2018, a date after the date of the deactivation of Petitioner's billing privileges on November 1, 2017.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Exs.) 1 at 1, 8 at 1.  Petitioner complains that the gap in billing privileges from November 1, 2017 through April 8, 2018, resulted in Petitioner not being paid for services rendered to Medicare-eligible beneficiaries during the gap period.

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CMS filed a prehearing brief (CMS Br.) with CMS Exs. 1through 7 on October 26, 2018, and filed CMS Ex. 8 on November 8, 2018.  Petitioner filed a request for summary judgment on November 12, 2018 (P. Br.), with no exhibits.  In her request, Petitioner waived the right to an oral hearing and agreed to a decision based on the exhibits and pleadings.  CMS waived its right to file a reply brief on November 13, 2018.  Petitioner did not object to CMS exhibits 1 through 8, which are admitted and considered as evidence.

On and before November 1, 2017, Petitioner was enrolled in Medicare with billing privileges.  By letter dated June 2, 2017, the MAC advised Petitioner that she needed to revalidate her Medicare enrollment.  CMS Ex. 1 at 65-67.  The MAC deactivated Petitioner's billing privileges effective November 1, 2017, stating that Petitioner failed to revalidate her Medicare enrollment or failed to respond to a request for more information.  CMS Ex. 1 at 61-62.  Subsequently, Petitioner submitted a Medicare enrollment application (CMS-855I) to revalidate her enrollment that was received by the MAC on April 9, 2018.  CMS Ex. 1 at 15, 21, 28-56 (Julian date "18099").  The application received by the MAC on April 9, 2018, was processed to approval by an initial determination dated May 22, 2018.  The MAC reactivated Petitioner's billing privileges effective April 9, 2018, based on approval of the CMS-855I received on that date.  The MAC's action resulted in a gap in Petitioner's billing privileges from November 1, 2017 through April 8, 2018 (gap period), during which period Petitioner was unable to obtain reimbursement from Medicare for services she delivered to Medicare-eligible beneficiaries.  CMS Ex. 1 at 9-12.  Petitioner remained enrolled in Medicare during the gap period.  CMS Br. at 11.

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; 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.

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1.  Petitioner waived oral hearing, CMS has not objected, and decision based on the documentary evidence and pleadings is appropriate.  42 C.F.R. § 498.66.

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

3.  Petitioner has no right to ALJ review of the determination of the MAC or CMS to deactivate Petitioner's billing privileges.

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

For the following reasons, I conclude Petitioner has no right to ALJ review of the MAC determination to deactivate Petitioner's billing privileges.  Petitioner also has no right to ALJ review in this forum of the denial of payment of Petitioner's claims during the gap period.  Petitioner does have a right to ALJ review of the reconsidered determination of the effective date of the reactivation of Petitioner's billing privileges.

The Secretary of the Department of Health & Human Services (the Secretary) promulgated regulations at 42 C.F.R. pt. 4241 that establish a process for enrolling providers and suppliers in Medicare.  Pursuant to the regulations, CMS or the MAC may deactivate the billing privileges of an enrolled provider or supplier for failure to do any of the following:

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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).  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, 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).

Under 42 C.F.R. pt. 498, there is no right to ALJ review 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).  I conclude Petitioner has no right to ALJ review of the MAC determination to deactivate Petitioner's billing privileges.  I also conclude that Petitioner has no right to ALJ review in this forum of the denial of payment of Petitioner's claims during the gap period.  Medicare claim reimbursement is simply not subject to review by an ALJ in this forum.  Urology Grp. of NJ, LLC, DAB No. 2860 at 6-7 (2018).  Petitioner does have a right to ALJ review of the reconsidered determination of the effective date of the reactivation of Petitioner's billing privileges.

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 Board has given an

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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 (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 (2014).

4.  The effective date of reactivation of Petitioner's billing privileges is the date on which the MAC received the application that it processed to approval, and that date is April 9, 2018.

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

The Secretary's regulations do not specifically address how to determine an effective date for the "reactivation" of Medicare billing privileges.  42 C.F.R. pt. 424, subpt. P.2  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).3  MPIM § 15.27.1.2 provides that the effective date of reactivation is the date the MAC received

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the reactivation application that the MAC processed to completion.  In this case, the MAC received the applications processed to completion on April 9, 2018.

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) (rev. eff. Mar. 12, 2019) when reactivating billing privileges of a provider or supplier described in that section.  MPIM ch. 15 §§ 15.27.1.2 (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.  Generally, an agency must obey its own rules and policies, particularly when intended to be binding, and a rule or statement of policy should be given equal effect by all agency adjudicators.  Charles H. Koch, Jr. & Richard Murphy, Admin. L. & Prac. §§ 4:22, 5:68 (3d ed. 2019).  Petitioner is a licensed clinical social worker and there is no dispute that she was enrolled in Medicare during the gap period and met all requirements for enrollment.  Therefore, Petitioner is 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 this case is straightforward.  There is no dispute the MAC deactivated Petitioner's Medicare billing privileges on November 1, 2017.  There is also no dispute that on April 9, 2018, the MAC received Petitioner's application to reactivate her Medicare billing privileges.  Accordingly, the effective date of reactivation may only be April 9, 2018.  The period for retrospective billing begins 30 days prior to the effective date of reactivation.

Petitioner argues that there was a system error she encountered using the online Provider Enrollment, Chain, and Ownership System (PECOS) while attempting to electronically submit her revalidation application.  P. Br. at 1, RFH.  Petitioner claims she was diligent in the revalidation process, and she argues that PECOS caused the deactivation of her billing privileges.  P. Br. at 3, RFH.  She also argues that PECOS and the MAC failed to advise her that she had the option to manually submit her application.  P. Br. at 2-3.  Petitioner's arguments provide no basis for relief.  Even accepting her allegations as true, any failure in PECOS resulted in the MAC decision to deactivate her billing privileges.  Unfortunately, I have no authority to review the decision to deactivate Petitioner's billing privileges.  The only review of that decision would be by the MAC if Petitioner submitted a rebuttal as authorized by 42 C.F.R. §§ 405.374 and 424.545(b).

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Petitioner's arguments may be construed to be for equitable relief or for estoppel.  I have no authority to grant equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010).  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).  Petitioner's arguments establish no basis for relief.

III.  Conclusion

For the foregoing reasons, I conclude that the effective date of reactivation of Petitioner's billing privileges is April 9, 2018.

• 1. Citations are to the October 1, 2017 revision of the Code of Federal Regulations (C.F.R.) that 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).
• 2. The effective date for Medicare billing privileges is determined in accordance with 42 C.F.R. § 424.520.
• 3. The current CMS policy is set forth in MPIM ch. 15 §§ 15.27.1.1 (rev. 904, eff. Dec. 31, 2019) and 15.27.1.2 (rev. 865, eff. Mar. 12, 2019) and provides for retrospective billing in accordance with MPIM ch. 15 § 15.17(B) for reactivations.