Nikki N. Kim, MD, DAB CR5871 (2021)

DECISION

The effective date of reactivation of Petitioner’s Medicare billing privileges is January 20, 2020, with a period for retrospective billing beginning December 21, 2019. 

I.  Background and Findings of Undisputed Facts

On June 12, 2020, Petitioner requested administrative law judge (ALJ) review of the April 14, 2020 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 reactivated Petitioner’s billing privileges effective January 20, 2020, and granted her retrospective billing privileges effective as early as December 21, 2019.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 1-2.  The reconsidered determination resulted in a gap in Petitioner’s billing privileges from December 2 through December 20, 2019 (gap period).  Petitioner complains that the gap period resulted in her not being paid for claims for services provided to Medicare beneficiaries during the gap period.  RFH at 2; Petitioner’s Letter filed August 30, 2020 (P. Br.). 

CMS filed a motion for summary judgment (CMS Br.) with CMS Ex. 1 on July 31, 2020.  Petitioner filed a letter (P. Br.) responding to the CMS motion on August 30, 2020.  Petitioner offered no exhibits and did not object to my consideration of CMS Ex. 1,

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which is admitted as evidence.  CMS waived the right to file a reply brief on August 31, 2020. 

The material facts are not disputed.  Petitioner was enrolled in Medicare with billing privileges and continued to be enrolled throughout the gap period.  CMS Br. at 4-5.

The MAC notified Petitioner on June 28, 2019, that she needed to revalidate her Medicare enrollment record no later than September 30, 2019.  The MAC notices advised Petitioner that if she failed to timely revalidate her enrollment record her billing privileges may be deactivated (stopped).  CMS Ex. 1 at 5-12.  The MAC notified Petitioner by letters dated December 5, 2019, that her billing privileges were stopped effective December 2, 2019, because Petitioner failed to revalidate her Medicare enrollment record.  CMS Ex. 1 at 13-16. 

On January 20, 2020, the MAC received a revalidation/reactivation application from Petitioner.  CMS Ex. 1 at 17-22, 25-30.  The MAC notified Petitioner by letter dated February 19, 2020, that her reactivation application was approved with a gap in billing privileges from December 2, 2019 through December 20, 2019.  CMS Ex. 1 at 43-45. 

Petitioner requested reconsideration arguing her employer received no notice that she was required to revalidate her Medicare enrollment before her enrollment was deactivated and her claims were denied.  CMS Ex. 1 at 46-47.  The MAC issued a reconsidered determination on April 14, 2020, that upheld the effective date of the reactivation of Petitioner’s billing privileges, the first date for retrospective billing privileges, and the gap period.  CMS Ex. 1 at 1-4.      

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 Petitioner’s 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.

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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 her billing privileges.

This case involves a gap in Petitioner’s billing privileges that was created when the MAC deactivated her billing privileges, and then reactivated her 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 her billing privileges.  Petitioner also has no right to ALJ review in this forum of the denial of payment of her 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 her 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 calendar days of the date of the change, except a change in ownership or control, which must be reported within 30 calendar days; and

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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 permits 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 number 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).2   I conclude Petitioner has no right to ALJ review of the MAC determination to deactivate her billing privileges.  Therefore, I have no ability to consider whether or not Petitioner’s employer received a notice to revalidate Petitioner’s Medicare enrollment information.  CMS Ex. 1 at 46; RFH.  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

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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, 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).

3.  Summary judgment is appropriate.

I have concluded, based on the rationale of the Board in prior cases, that Petitioner has a right to ALJ review of the reconsidered determination of the effective date of reactivation of her 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 Petitioner’s billing privileges that require a hearing in this case; CMS is entitled to judgment as a matter of law and summary judgment is appropriate.

Petitioner is 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);

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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 Petitioner’s 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 January 20, 2020.

5.  The MAC determined on reconsideration that Petitioner’s billing privileges were reinstated effective December 21, 2019, based on a January 20, 2020 reactivation effective date and retrospective billing privileges of 30 days. 

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.3   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 when reactivating providers and suppliers.  In this case, there is no dispute that the MAC received Petitioner’s reactivation application that it processed to completion on January 20, 2020.

Applying the regulations and policy in this case is straightforward.  There is no dispute, based on the reconsidered determination, that Petitioner’s Medicare billing privileges were deactivated effective December 2, 2019.  There is also no dispute that on January 20, 2020, the MAC received Petitioner’s application to reactivate her Medicare billing privileges.  There is no dispute that Petitioner was qualified and enrolled in Medicare throughout the gap period.  Accordingly, the effective date of reactivation of Petitioner’s billing privileges is January 20, 2020.  The first day of the period for retrospective billing is December 21, 2019.

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Petitioner’s 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 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 January 20, 2020, with retrospective billing privileges beginning on December 21, 2019. 

• 1. 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.
• 2. The CMS deactivation notices did not inform Petitioner of the right to submit a rebuttal pursuant to 42 C.F.R. § 405.374.  CMS Ex. 1 at 13-16.  However, I have no authority to review the deactivation determination or fashion a remedy for this oversight.
• 3. The effective date for Medicare enrollment and billing privileges is determined in accordance with 42 C.F.R. § 424.520.