Abdul-Hady Kheder, MD, Americare Medical Associates, LLC, and Hamilton Hospitalists, LLC, DAB CR5857 (2021)

DECISION

The effective date of reactivation of Petitioners’ Medicare billing privileges is August 28, 2019, with a period for retrospective billing beginning July 29, 2019.

Page 2

I. Background and Findings of Undisputed Facts

On March 5, 2020, Petitioners1 requested administrative law judge (ALJ) review of the January 17, 2020 reconsidered determination of Novitas Solutions, a Medicare administrative contractor (MAC).  Request for Hearing (RFH).  The reconsidered determination upheld an initial determination by the MAC that reinstated Petitioners’ billing privileges effective July 29, 2019.  The reconsidered determination concluded that the effective date of reactivation of Petitioners’ billing privileges was August 28, 2019, and the first day of the 30-day period for retrospective billing was July 29, 2019.  CMS Ex. 1 at 65-66.  The reconsidered determination resulted in a gap in Petitioners’ billing privileges from June 19 through July 28, 2019 (gap period).  Petitioners complain that the gap period resulted in Petitioners not being paid claims for services provided to Medicare beneficiaries during the gap period.  RFH at 1. 

CMS filed a motion for summary judgment (CMS Br.) with CMS Exs. 1 through 4 on April 9, 2020.  Petitioners did not file a response in opposition to CMS’s motion for summary judgment but did file medical records for Petitioner Kheder that were not marked as an exhibit but which I treat as if marked Petitioners’ Exhibit (P. Ex.) 1.  CMS filed a reply brief (CMS Reply) on May 22, 2020.  Petitioners have not objected to CMS Exs. 1 through 4, which are admitted and considered as evidence.  CMS objected in its reply brief to my consideration of P. Ex. 1 on grounds that the medical records are not relevant and constitute new evidence for which Petitioners have not shown good cause for submission for the first time before me, citing 42 C.F.R. § 498.56(e)(2)(ii).  CMS argues that it does not dispute that Petitioner Kheder had heart surgery as he alleges, and there is no need to admit and consider the medical records, even if his heart surgery was relevant.  CMS Reply.  I accept as true for purposes of summary judgment Petitioner Kheder’s allegation that he had heart surgery, that fact is undisputed, and it is therefore, unnecessary to admit his medical records as evidence.  The medical records relate to a hospital admission on November 2, 2018 with discharge on November 15, 2018.  P. Ex. 1.  Petitioner Kheder argues he was out of his office during most of 2018 and a great portion of 2019, due to the medical conditions reflected by P. Ex. 1.  RFH at 1.

Page 3

Again, I accept Petitioner Kheder’s representations as true for purposes of summary judgment, these facts are not disputed by CMS, and there is no need to admit P. Ex. 1.  Accordingly, P. Ex. 1 is not admitted. 

The material facts are not disputed.  Petitioners were enrolled in Medicare with billing privileges and continued to be enrolled throughout the gap period.  CMS Br. at 9, 12-13. 

The MAC notified Petitioner Americare on May 30, 2018, that revalidation of its enrollment was required by August 31, 2018.  CMS Ex. 1 at 1.  The MAC notified Petitioner Kheder on June 28, 2018, that he needed to revalidate his enrollment, including his reassignments of the right to bill Medicare to Petitioners Americare, Hamilton, and a third entity for which no request for hearing is pending before me, not later than September 30, 2018.  CMS Ex. 1 at 3, 6.  The MAC notices to Americare and Kheder advised Petitioners that failure to timely revalidate could cause deactivation of billing privileges and a gap in those privileges.  CMS Ex. 1 at 1, 3, 6.  CMS has not placed in evidence a revalidation notice to Petitioner Hamilton.  

On June 19, 2019, the MAC notified Petitioners Kheder and Americare that their billing privileges were deactivated effective June 19, 2019, because they failed to timely revalidate their Medicare enrollments.  CMS Ex. 1 at 15-18.  No deactivation notice to Petitioner Hamilton is in evidence. 

Petitioner Americare filed its reactivation application on August 28, 2019.  CMS Ex. 1 at 19, 24.  The MAC notified Petitioner Americare on October 4 and 21, 2019, that its reactivation application was approved.  CMS Ex. 1 at 32, 37.  In the October 21, 2019 letter, the MAC informed Petitioner Americare that there was a gap in billing privileges from June 19, 2019 through July 28, 2019, during which Petitioner Americare would not be paid for services to Medicare-eligible beneficiaries.  CMS Ex. 1 at 37.  Petitioner Americare requested reconsideration on October 21, 2019.  Petitioner Americare argued the required revalidation application had been sent to the MAC by mail on June 28, 2019, but not by certified mail or facsimile.  CMS Ex. 1 at 45. 

CMS has not presented as evidence reactivation applications from Petitioners Kheder or Hamilton, or notices from the MAC related to such applications.  However, CMS presented a reconsideration request from Petitioner Hamilton challenging the gap period citing the same argument as Petitioner Americare.  CMS Ex. 1 at 56. 

The reconsidered determination issued on January 17, 2020, indicates that all Petitioners were subject to a payment hold and deactivation of billing privileges.  The reconsidered determination also indicates that the revalidation application was received from Petitioner Americare on August 28, 2019, and that revalidation applications were received from Petitioners Kheder and Hamilton on September 7, 2019.  CMS Ex. 1 at 65.  The reconsidered determination concluded that the billing privileges for all Petitioners were

Page 4

reactivated August 28, 2019, based on the filing date of Petitioner Americare’s reactivation application, with a period for retrospective billing beginning July 29, 2019, for all Petitioners.  CMS Ex. 1 at 65-66. 

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 of Petitioners’ billing privileges.

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 ALJ review of the determination of the MAC or CMS to deactivate their billing privileges.

This case involves a gap in Petitioners’ billing privileges that was created when the MAC deactivated their billing privileges, and then reactivated their 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.

For the following reasons, 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. 

Page 5

Petitioners do have a right to ALJ review of the reconsidered determination of the effective date of the reactivation of their billing privileges.

The Secretary of the Department of Health & Human Services (the Secretary) promulgated regulations at 42 C.F.R. pt. 4242 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 calendar days of the date of the change, except a change in ownership or control, which must be reported within 30 calendar 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)(1)-(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 permits the provider or supplier to recertify that its enrollment information on file is correct.  42 C.F.R. § 424.540(b)(1)-(2).  Deactivation of Medicare billing privileges is an action to protect the provider or supplier from misuse of its billing number and to protect the Medicare Trust Funds from unnecessary overpayments.  42 C.F.R. § 424.540(c).

Page 6

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).3   I conclude Petitioners have no right to ALJ review of the MAC determinations to deactivate their billing privileges.  I also conclude that Petitioners have no right to ALJ review in this forum of the denial of payment of Petitioners’ 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).  Petitioners do have a right to ALJ review of the reconsidered determination of the effective date of the reactivation of Petitioners’ 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” is an initial determination 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 3-12 (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 or 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).

Page 7

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 related to the reactivation of Petitioners’ billing privileges and the reassignment of those privileges 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 Social Security Act (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 Acknowledgment 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.  The effective date of reactivation of Petitioners’ billing privileges, determined in accordance with CMS policy, is the date on which the MAC received the application that it processed to approval, in this case the date of receipt was August 28, 2019.

5.  The MAC determined on reconsideration that Petitioners’ billing privileges were reinstated effective July 29, 2019, based on an August 28, 2019 reactivation effective date and retrospective billing privileges of 30 days. 

Page 8

The Secretary’s regulations do not specifically address how to determine the reactivation effective date of Medicare billing privileges.  42 C.F.R. pt. 424, subpt. P.4   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 found in the Medicare Program Integrity Manual (MPIM), CMS Pub. 100-08, § 15.27.1.2 (rev. 865, eff. Mar. 12, 2019).  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.  MPIM § 15.27.1.2 also requires that MACs grant retrospective billing privileges for reactivating providers and suppliers.  In this case, there is no dispute that the MAC received Petitioner Americare’s reactivation application that it processed to completion on August 28, 2019.5

Applying the regulations in this case is straightforward.  There is no dispute, based on the reconsidered determination, that Petitioners’ Medicare billing privileges were deactivated effective June 19, 2019.  There is also no dispute that on August 28, 2019, the MAC received Petitioner Americare’s application to reactivate its Medicare billing privileges.  Accordingly, the effective date of reactivation Petitioners’ billing privileges is August 28, 2019.  The first day of the period for retrospective billing is July 29, 2019. 

Petitioner Kheder argues his health problems prevented him from overseeing his office staff and that reactivation applications were sent to the MAC by regular mail on June 28, 2019.  RFH.  Petitioner Kheder’s health problems were truly unfortunate.  However, the fact that Petitioner Kheder’s health problems resulted in Petitioners’ failure to timely revalidate their enrollment leading to deactivation of their billing privileges is not relevant to an issue that I may decide, as I may not review the decision of the MAC to deactivate billing privileges.  Further, it is not the date of mailing of a reactivation application that determines the effective date of reactivation.  As already discussed, it is the date of receipt by the MAC of the reactivation application processed to completion that controls the effective date determination.  The evidence shows the reactivation application of Petitioner Americare that was processed to completion was received on August 28, 2019 (CMS Ex. 1 at 19, 24), and Petitioners do not dispute the date of receipt.

Page 9

Petitioners’ arguments may be construed to be requests for equitable relief or to estop the government.  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, and no such allegation exists in this case.  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). 

I conclude that Petitioners’ arguments establish no basis for relief.

III.  Conclusion

For the foregoing reasons, I conclude that the effective date of reactivation of Petitioners’ billing privileges is August 28, 2019, with retrospective billing privileges beginning on July 29, 2019.

• 1. Petitioner Abdul-Hardy Kheder is the sole owner of the practice groups Americare Medical Associates, LLC (Americare) (Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 3 at 13) and Hamilton Hospitalists, LLC (Hamilton) (CMS Ex. 4 at 22-23).  CMS Br. at 1.  This case involves the reactivation of Petitioners’ Medicare billing privileges, including Petitioner Kheder’s reassignment of his billing privileges to Americare and Hamilton.  Petitioner Kheder requested review on behalf of himself and his two practice groups.
• 2. Citations are to the October 1, 2019 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.
• 3. The CMS deactivation notices did not inform Petitioners of the right to submit a rebuttal pursuant to 42 C.F.R. § 405.374.  CMS Ex. 1 at 15-18.  However, I have no authority to review the deactivation determination or fashion a remedy for this oversight.
• 4. The effective date for Medicare enrollment and billing privileges is determined in accordance with 42 C.F.R. § 424.520.
• 5. The MAC treated August 28, 2019, as the reactivation effective date for all Petitioners, even though Petitioners Kheder and Hamilton filed their reactivation applications some days later.