Scott L. Shindler, DPM, DAB CR5683 (2020)

DECISION

Petitioner, Scott L. Shindler, DPM, is a podiatrist, licensed in South Dakota.  After his Medicare billing privileges were deactivated, he applied to reenroll in the program.  The Centers for Medicare & Medicaid Services (CMS) granted his application, effective October 4, 2017, resulting in a coverage lapse from July 11, 2017, through October 3, 2017.  Petitioner now challenges that effective date and asks that the lapse in coverage be eliminated.

Because Petitioner Shindler filed his subsequently-approved reenrollment application on October 4, 2017, I find that October 4 is the earliest possible effective date for his reenrollment.  Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 (2019); Urology Grp. of NJ, LLC, DAB No. 2860 (2018); Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017), aff’d sub nom. Goffney v. Azar, No. CV 17-8032 MRW (C.D. Cal. Sept. 25, 2019).

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Background

In a notice dated November 22, 2017, the Medicare contractor, Noridian Healthcare Solutions, advised Petitioner that it approved his revalidated Medicare enrollment, with a lapse in coverage from July 11 through October 4, 2017.  CMS Ex. 17.  Petitioner requested reconsideration.  CMS Ex. 18. 

In a reconsidered determination, dated December 27, 2017, the contractor modified the effective date of the reactivation, finding that Petitioner filed his application on October 4, 2017, and that the coverage lapse would be from the time of deactivation through “the date prior to the receipt date of the application.”  CMS Ex. 19.  That “date prior” is October 3, 2017. 

Petitioner appealed. 

CMS moves for summary judgment.  However, because neither party proposes any witnesses, an in-person hearing would serve no purpose.  See Acknowledgment and Pre-hearing Order at 3, 5 (¶¶ 4, 10) (March 22, 2018).  I may therefore decide this case based on the written record, without considering whether the standards for summary judgment are satisfied. 

CMS submits its motion and brief (CMS Br.) with 19 exhibits (CMS Exs. 1-19).  Petitioner submits a letter brief (P. Br.)  In the absence of any objections, I admit into evidence CMS Exs. 1-19.  See Acknowledgment and Pre-hearing Order at 5 (¶ 7).

Discussion

Petitioner filed his subsequently-approved enrollment application on October 4, 2017, and his reactivated Medicare enrollment can be no earlier than that date.  42 C.F.R. § 424.520(d).1

Enrollment.  Petitioner Shindler participates in the Medicare program as a “supplier” of services.  Social Security Act § 1861(d); 42 C.F.R. § 498.2.  To receive Medicare payments for the services furnished to program beneficiaries, a supplier must enroll in the program.  42 C.F.R. § 424.505.  “Enrollment” is the process by which CMS and its contractors:  1) identify the prospective supplier; 2) validate the supplier’s eligibility to provide items or services to Medicare beneficiaries; 3) identify and confirm a supplier’s owners and practice location; and 4) grant the supplier Medicare billing privileges.  42 C.F.R. § 424.502.

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To enroll, a prospective supplier must complete and submit an enrollment application.  42 C.F.R. §§ 424.510(d)(1); 424.515(a).  An enrollment application is either a CMS-approved paper application or an electronic process approved by the Office of Management and Budget.  42 C.F.R. § 424.502.2  When CMS determines that a prospective supplier meets the applicable enrollment requirements, it grants Medicare billing privileges, which means that the supplier can submit claims and receive payments from Medicare for covered services provided to program beneficiaries.  For a physician, the effective date for billing privileges “is the later of the date of filing” a subsequently-approved enrollment application or “the date that the supplier first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d) (emphasis added).

Revalidation and Deactivation.  To maintain its billing privileges, a supplier must, at least every five years, resubmit and recertify the accuracy of its enrollment information, a process referred to as “revalidation.”  42 C.F.R. § 424.515.  In addition to periodic revalidations, CMS may, at other times and for its own reasons, ask a supplier to recertify the accuracy of its enrollment information.  42 C.F.R. § 424.515(d) and (e).  Within 60 days of receiving CMS’s notice to recertify, the supplier must submit an appropriate enrollment application with complete and accurate information and supporting documentation.  42 C.F.R. § 424.515(a)(2).

If, within 90 days from receipt of CMS’s notice, the supplier does not furnish complete and accurate information and all supporting documentation or does not resubmit and certify the accuracy of its enrollment information, CMS may deactivate its billing privileges, and no Medicare payments will be made.  42 C.F.R. §§ 424.540(a)(3); 424.555(b).  To reactivate its billing privileges, the supplier must complete and submit a new enrollment application.  42 C.F.R. § 424.540(b)(1).  It is settled that, following deactivation, section 424.520(d) governs the effective date of reenrollment.  Sokoloff, DAB No. 2972 at 6-7; Urology Grp., DAB No. 2860 at 7; Goffney, DAB No. 2763 at 7.

I have no authority to review a deactivation.  Sokoloff, DAB No. 2972 at 6; Ark. Health Grp., DAB No. 2929 at 7-9 (2019). 

Petitioner’s deactivation and reenrollment.  In a notice letter, dated February 8, 2017, the contractor directed Petitioner to revalidate his Medicare enrollment no later than April 30, 2017, by updating or confirming the information in his record.  The letter directed Petitioner to the PECOS website and explained that a supplier could revalidate through the PECOS system or by mailing to the contractor a completed CMS-855 Medicare enrollment application.  The letter warned that, if Petitioner failed to respond to the

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notice, his Medicare enrollment could be deactivated; the letter explained that, during the period of deactivation, Medicare would not pay for the services rendered.  CMS Ex. 1. 

Petitioner asserts that the notice was sent to an old address.  He also blames a disgruntled employee, who (Petitioner asserts) “failed to meet the Medicare deadline.” According to Petitioner, “[a]ny emails or website communications went through this employee and no one in the office was made aware that the Medicare revalidation was due.”  P. Br.

In a second letter, dated May 22, 2016, the contractor reminded Petitioner that he had not revalidated his enrollment as requested and warned that, if he failed to do so, his Medicare enrollment would be deactivated and he would not be paid for services rendered during the period of deactivation.  CMS Ex. 3.  Petitioner did not respond. 

In a letter dated July 25, 2017, the contractor advised Petitioner that his Medicare billing privileges were stopped, effective July 11, 2017, because he had not revalidated his enrollment record.  CMS Ex. 5.

Thereafter, Petitioner filed a revalidation application (Form CMS 855I), which the contractor ultimately rejected as incomplete.  CMS Exs. 6-9.  I have no authority to review a rejected application, notwithstanding the merits of Petitioner’s position.  Wishon Radiological Med. Grp., Inc., DAB No. 2941 at 6-7 (2019); James Shepard, M.D., DAB No. 2793 at 8 (2017).

On October 4, 2017, Petitioner Shindler filed another Medicare reenrollment application, which, after requesting and obtaining additional information, the contractor approved.3  CMS Exs. 10, 17; see CMS Exs. 11-16.  Thus, pursuant to section 424.520(d), the date Petitioner filed his subsequently-approved enrollment applications – October 4, 2017 – is the correct effective date of enrollment.  Sokoloff, DAB No. 2972 at 6-7; Urology Grp., DAB No. 2860 at 7-9; Goffney, DAB No. 2763 at 7.

I have no authority to grant Petitioner an earlier effective date based on any equitable or policy arguments.  Sokoloff, DAB No. 2972 at 9.

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Conclusion

Because Petitioner Shindler filed his subsequently-approved reenrollment application on October 4, 2017, CMS properly granted his Medicare reenrollment effective that date.

• 1. I make this one finding of fact/conclusion of law.
• 2. CMS’s electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).
• 3. Some Medicare contractors stamp paper applications with a “Julian date stamp,” which counts the days of the year consecutively.  Here, the first two digits stamped on the application (upper left corner) indicate the year – 2017.  The next three digits indicate the date – the 277th day of 2017 or October 4, 2017.  CMS Ex. 10.