Nina Pierpont, MD, PhD, DAB CR5681 (2020)

DECISION

The effective date of reactivation of Petitioner's Medicare billing privileges is May 14, 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 August 17, 2018, Petitioner requested administrative law judge (ALJ) review of the June 29, 2018 reconsidered determination of National Government Services, a Medicare administrative contractor (MAC).  Request for Hearing (RFH).  The reconsidered determination upheld an initial determination by the MAC that the reactivation of Petitioner's billing privileges was effective on May 14, 2018, a date after the date of the deactivation of Petitioner's billing privileges on March 23, 2018.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 1-5.  Petitioner complains that the gap in billing privileges from March 23, 2018 through May 13, 2018 (gap period) resulted in Petitioner not being paid for 15 claims for office visits during the gap period.  RFH at 1.

CMS filed a motion for summary judgment (CMS Br.) with CMS Exs. 1 through 3 on September 26, 2018.  Petitioner filed a response in opposition to the CMS motion for

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summary judgment on October 21, 2018 (P. Br.) with P. Ex. 1.  CMS filed a reply brief on November 5, 2018, with CMS Ex. 4.  Neither party objected to my consideration of the offered evidence.  CMS Exs. 1 and 3 and P. Ex. 1 are admitted and considered as evidence.  CMS Exs. 2 and 4 are related to the MAC's determination to reject Petitioner's revalidation application (CMS-855I) received by the MAC on February 1, 2018 (February 2018 CMS-855I).  As explained hereafter, the rejection of the February 2018 CMS-855I is not a determination subject to my review.  Therefore, CMS Exs. 2 and 4 are not relevant to an issue before me and the exhibits are not admitted.

The material facts are not disputed.  On and before March 23, 2018, Petitioner was enrolled in Medicare with billing privileges, and she continued to be enrolled throughout the gap period.  CMS Br. at 14-18; CMS Ex. 1 at 6.

In a December 15, 2017 letter, the MAC notified Petitioner that she needed to revalidate her Medicare enrollment record by February 28, 2018.  CMS Ex. 1 at 6-7.  The notice informed Petitioner that, if she failed to respond, her Medicare enrollment may be deactivated and she would not be paid for services rendered during the period of deactivation.  CMS Ex. 1 at 6.

On February 1, 2018, the MAC received the February 2018 CMS-855I from Petitioner, which was submitted to revalidate Petitioner's enrollment.  CMS Ex. 1 at 8-41.

On February 14, 2018, the MAC sent a development request to Petitioner for additional information to be submitted not later than March 16, 2018.  CMS Ex. 1 at 42-45.  The MAC received no response from Petitioner.  In a March 26, 2018 letter, the MAC notified Petitioner that it deactivated her Medicare billing privileges on March 23, 2018, because she had not successfully revalidated her enrollment record or did not respond to the requests for more information.  CMS Ex. 1 at 46-47.

There is no dispute that on May 14, 2018, the MAC received Petitioner's revalidation enrollment application (May 2018 CMS-855I) via the Medicare Provider Enrollment, Chain, and Ownership System (PECOS).  CMS Ex. 1 at 48-62; RFH at 2; P. Ex. 1 at 2.  The MAC issued an initial determination on June 4, 2018, approving Petitioner's reactivation application but with a gap in billing privileges from March 23 through May 13, 2018.  Although not specifically stated, the MAC reactivated Petitioner's billing privileges effective May 14, 2018, the date the MAC received the May 2018 CMS-855I.  CMS Ex. 1 at 3-4, 63-65; CMS Br. at 1, 12; CMS Reply at 1.

Petitioner requested reconsideration by letter dated June 13, 2018.  CMS Ex. 1 at 66-104; P. Ex. 1 at 4.  On June 29, 2018, a MAC hearing officer issued a reconsidered determination, upholding a reactivation effective date of May 14, 2018, with a gap in billing privileges from March 23 through May 13, 2018.  CMS Ex. 1 at 1-5.

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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.

1.  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.

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

3.  Petitioner has no right to ALJ review of the determination of the MAC or CMS to reject Petitioner's February 2018 CMS-855I.

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.  CMS Br. at 14; RFH at 1.

For the following reasons, I conclude Petitioner has no right to ALJ review of the MAC's determination to reject Petitioner's February 2018 CMS-855I or 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

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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:

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

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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.  The regulations specifically provide that there is no right to request review of a MAC or CMS determination to reject an enrollment application.  42 C.F.R. § 424.525(d).  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 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., DAB No. 2573 at 7.  In this case, it is the MAC hearing officer's June 29, 2018 reconsidered determination, which upheld a reactivation effective date of May 14, 2018, with a gap in billing privileges from March 23 through May 13, 2018, that is subject to my review.  42 C.F.R. § 498.32(b)(1).

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4.  Petitioner waived an oral hearing and decision on the documentary evidence and pleadings is appropriate.

In her response to the CMS motion for summary judgment, Petitioner advised me that an oral hearing was unnecessary.  P. Br. at 5.  CMS filed no objection to Petitioner's wavier of oral hearing and it is accepted.  42 C.F.R. § 498.66(a), (b).  Accordingly, judgment on the documentary evidence and the parties' pleadings is appropriate.

5.  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 May 14, 2018.

6.  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 the reactivation application that the MAC processed to completion.  CMS Ex. 3 at 12.  In this case, the MAC received the applications processed to completion on May 14, 2018.  CMS Ex. 1 at 48; P. Ex. 1 at 2.

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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. 865, eff. Mar. 12, 2019) when reactivating billing privileges of a provider or supplier described in that section.  MPIM § 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 physician 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 March 23, 2018.  CMS Ex. 1 at 46.  There is also no dispute that on May 14, 2018, the MAC received Petitioner's application to reactivate her Medicare billing privileges.  CMS Ex. 1 at 48; P. Ex. 1 at 2.  Accordingly, the effective date of reactivation may only be May 14, 2018.  Therefore, the gap period in this case is March 23, 2018 to May 13, 2018, with retrospective billing privileges for up to 30 days prior to the effective date of reactivation of billing privileges.

Petitioner argues in her request for hearing that her Medicare participation was terminated by the MAC without notification.  RFH at 1.  The assertion is legally in error as Petitioner's participation was not terminated and she remained enrolled in Medicare at all times.  However, her billing privileges were deactivated, which means that though she was enrolled, she would not be paid for services rendered to Medicare beneficiaries during the period of deactivation.  Petitioner asserts that she received no notice of the MAC's request for additional information or the deactivation of billing privileges when she failed to respond to that request.  RFH at 2; CMS Ex. 1 at 68; P. Br. at 4-5.  However, even if Petitioner's assertions as true, the MAC's determination to deactivate because Petitioner failed to respond to a development request is not a determination subject to my review for the reasons already discussed.  Petitioner complains about the MAC's use of email for communication but cites no authority showing that the use of email is not permissible.  RFH.

Petitioner requests that the date of reactivation of her billing privileges be the date of deactivation, thereby eliminating the gap period.  Elimination of the gap period would

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permit Petitioner to be paid for services she rendered to Medicare-eligible beneficiaries during the gap period.  P. Br. at 4.  Petitioner's arguments regarding her inability to obtain payment for office visits during the gap period may be construed to be an argument that she was deprived of property without due process.  However, in Urology, the Board rejected a similar due process argument that the CMS action creating a gap in billing privileges resulted in an unlawful deprivation of property without due process.  DAB No. 2860.  The Board recognized it could not declare statutes or regulations unconstitutional and decline to follow them.  However, the Board noted it could consider a constitutional claim that challenges the manner a regulation is interpreted or applied in a particular case.  The Board found that the gap in billing privileges resulted from the plain language of the regulations that bound the Board.  The Board commented that the petitioner in that case should have been aware of the application of the regulations when applying to participate in Medicare.  The Board found the petitioner had failed to show a taking of Medicare payments in which the petitioner had a property right.  The Board commented that the creation of the gap was really the petitioner's own fault.  Urology, DAB No. 2860 at 14-15.  The Board found that the petitioner was never deprived of its Medicare enrollment because it was not revoked and the petitioner was not excluded.  The Board stated that the petitioner was not challenging loss of participation in Medicare but, rather, his inability to receive reimbursement for services the petitioner "chose to provide" to Medicare-eligible beneficiaries during the gap period after the petitioner had been advised its billing privileges were deactivated.  Id. at 15.  The Board reviewed various decisions of the federal courts and concluded the petitioner had no property interest in participation in the Medicare program.  Id. at 16.  The Board did not accept that there is a protectable property interest in payment for services rendered during the gap period by one enrolled in Medicare with billing privileges that were not revoked.  The crux of Petitioner's argument before me is that she should have been given proper notice before deactivation of her billing privilege.  The Act and the Secretary's regulations provide for no right to ALJ or Board review of the deactivation determination.  Like the Board, I am required to follow the Act and regulations and have no authority to declare statutes or regulations invalid.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009).

Petitioner's arguments may also be construed as a plea for equitable relief or for estoppel.  I have no authority to grant equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010).  Furthermore, 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).  There is no evidence of affirmative misconduct by government agents.  Petitioner's arguments, therefore, establish no basis for relief.

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III.  Conclusion

For the foregoing reasons, I conclude that the effective date of reactivation of Petitioner's billing privileges is May 14, 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.  There is no dispute that Petitioner's billing privileges were not revoked pursuant to 42 C.F.R. § 424.535(a).  Rather, Petitioner's billing privileges were deactivated pursuant to 42 C.F.R. § 424.540 and then reactivated.  CMS Br. at 16-18.  Determination of a new effective date of billing privileges based on the reactivation causes the gap period.
• 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.