George Yaplee Medical Center d/b/a Triangle Eye Institute, DAB No. 3003 (2020)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

George Yaplee Medical Center d/b/a Triangle Eye Institute (Petitioner) appeals the decision of an administrative law judge (ALJ) sustaining the determination of a Medicare contractor for the Centers for Medicare & Medicaid Services (CMS) that Petitioner's billing privileges were reactivated after a period of deactivation effective May 30, 2017, George Yaplee Medical Center d/b/a Triangle Eye Institute, DAB CR5037 (2018) (ALJ Decision).  The effective date resulted in a gap in billing privileges from May 12, 2017 (the date Petitioner's billing privileges were deactivated) through May 29, 2017. Petitioner contends that it should not have been subject to any gap in billing privileges.

For the reasons explained below, we determine that the effective date for reactivation was set correctly according to regulation, and that the reasons for deactivation and its duration are not appealable and not relevant to our review.  Therefore, we uphold the ALJ Decision.

Case Background1

By letter dated January 13, 2017, Noridian Healthcare Solutions (Noridian), the Medicare Administrative Contractor acting on behalf of CMS, informed Petitioner that it was required to revalidate its Medicare enrollment record by March 31, 2017.  CMS Ex. 1, at 1.  The notice stated that Petitioner's "[f]ailure to respond . . . will result in a hold on your payments, and possible deactivation of your Medicare enrollment."  Id.  The notice further explained that, "[i]f you are a non-certified provider or supplier, and your enrollment is deactivated, you will maintain your original PTAN^[2^], however you will not

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be paid for services rendered during the period of deactivation.  This will cause a gap in your reimbursement."  Id.

On April 3, 2017, Noridian received Petitioner's form CMS-855B.  ALJ Decision at 2; CMS Pre-hearing Br. at 2, ¶ 2.  On April 7, 2017, Noridian sent an email to Petitioner requesting "revisions and/or supporting documentation."  CMS Ex. 3, at 1.  The email warned Petitioner:  "[W]e may reject your application(s) if you do not furnish complete information within 30 calendar days of the initial request."  Id.  (emphasis in original).  The email also directed Petitioner to submit the requested information before May 7, 2017.  Id.

On April 25, 2017, Petitioner sent its response to the request by facsimile to Noridian. CMS Ex. 4.  On May 12, 2017, Noridian advised that Petitioner had not provided the requested information and documentation required to complete its revalidation enrollment application, identifying six missing items or sections.  CMS Ex. 5, at 1.  Noridian informed Petitioner that its application had therefore been rejected.  Id.  The May 12, 2017 notice then states:  "[W]e have put a hold on all Medicare payments until the missing information is received.  We also will deactivate the Medicare PTAN at a later date if a new revalidation application is not received.  If that action is taken, you will be notified via mail."  Id. (emphasis in original).

Petitioner then submitted a new application, signed on May 25, 2017, which Noridian has stated it received on May 30, 2017.  CMS Ex. 6, at 52; CMS Pre-hearing Br. at 3, ¶ 6.  (Petitioner does not dispute that receipt date.)  Noridian approved that application on June 26, 2017.  CMS Ex. 12.  Noridian notified Petitioner that the effective date of its Medicare enrollment would still be October 1, 1999, but with a lapse in billing privileges from May 12, 2017, through May 29, 2017.  Id. at 1‑2.  Petitioner requested reconsideration, CMS Ex. 13, and Noridian upheld its initial determination, CMS Ex. 14, at 3.  Petitioner then sought a hearing before an ALJ, who also upheld the initial determination to "reactivate the Medicare participation and billing privileges of Petitioner . . . effective May 30, 2017."  ALJ Decision at 1.

The ALJ did not conduct an in-person hearing because neither CMS nor Petitioner submitted written direct testimony of any proposed witness as instructed and, therefore, "no purpose w[ould] be served by an in-person hearing."  ALJ Decision at 1-2.  Although CMS moved for summary judgment, the ALJ determined that, because no in-person hearing would be held, he could decide the case based on the evidence the parties had submitted without ruling on whether the summary judgment standards were met.  Id. at 1.

The ALJ determined that Petitioner submitted the application that the contractor approved on May 30, 2017, which was the earliest effective reactivation date, and, therefore, the contractor properly assigned that date as the reactivation date of Petitioner's billing privileges.  Id. at 2-3.  The ALJ determined that Petitioner's

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"challenge to the effective date of reactivation of its billing privileges is, in reality, a challenge to the contractor's decisions to reject its April 3, 2017 renewal application and subsequently to deactivate Petitioner's billing privileges," which the ALJ determined that he had no authority to hear.  Id. at 3.  The ALJ also determined that he had no authority to consider Petitioner's equitable argument "that the contractor's actions were unfair given that Petitioner acted in good faith and honestly tried to comply with the contractor's requests."  Id. at 4.

Petitioner asks us to review the ALJ Decision.  Request for Review (RR) at 1.  Petitioner states that it disagrees with the ALJ Decision and that it requested a hearing, but no hearing was conducted.  Id.  Petitioner asserts that it responded to Noridian's request for revalidation on March 30, 2017, but that the ALJ wrongly stated Petitioner waited until April 3, 2017 to submit its original reenrollment application.  Id.  Petitioner also asks for guidance as to who can address its arguments that the ALJ stated he had no authority to hear.  Id.

Applicable legal authorities

To receive Medicare payment for Medicare-covered items and services, a physician or other "supplier" of Medicare services must maintain active enrollment in the Medicare program.3  42 C.F.R. §§ 400.202 (defining "Supplier"), 424.500, 424.502, 424.505, 424.510, 424.516.  To maintain Medicare billing privileges, an enrolled supplier is required to resubmit and recertify its enrollment application information at least every five years.  Id. § 424.515.

A Medicare contractor that receives an enrollment application with missing information or supporting documentation must request the information or documentation from the supplier and afford the supplier at least 30 calendar days to respond to the request and cure any deficiencies in the application.  See id. § 424.525.  CMS "may reject" an application if a supplier "fails to furnish complete information" within that 30-day period, id. § 424.525(a)(1), but "CMS, at its discretion, may choose to extend the 30 day period if CMS determines that the prospective . . . supplier is actively working with CMS to resolve any outstanding issues," id. § 424.525(b).  If CMS rejects an enrollment application, the supplier must complete and submit a new enrollment application with all supporting documentation.  Id. § 424.525(c).  A supplier has no right to appeal from CMS's rejection of an enrollment application.  Id. § 424.525(d).

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CMS may deactivate an enrolled supplier's Medicare billing privileges if, among other reasons, a "supplier does not furnish complete and accurate information and all supporting documentation within 90 calendar days of receipt of notification from CMS to submit an enrollment application and supporting documentation, or resubmit and certify to the accuracy of its enrollment information."  Id. § 424.540(a)(3).  Once a supplier's billing privileges have been deactivated, the "supplier must complete and submit a new enrollment application to reactivate its Medicare billing privileges, or, when deemed appropriate, at a minimum, recertify" the accuracy of its enrollment information.  Id. § 424.540(b)(1).  The decision to deactivate a supplier's billing privileges is not an appealable initial determination and does not result in any right to a hearing.  Id. §§ 498.3, 498.5; Rosemary Sachs, ARNP, DAB No. 2978, at 5-6 (2019) (and cases cited therein).

Once CMS approves an enrollment application, the effective date of a physician's billing privileges is the latter of either:  "(1) The date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or (2) The date that the supplier first began furnishing services as a new practice location."  42 C.F.R. § 424.520(d).  The "date of filing" means "the date that the Medicare . . . contractor receives a signed . . . enrollment application that the Medicare . . . contractor is able to process to approval."  73 Fed. Reg. 69,726, 69,766-67 (Nov. 19, 2008); accord Alexander C. Gatzimos, MD, JD, LLC d/b/a Michiana Adult Medical Specialists, DAB No. 2730, at 5 (2016).

CMS's determination of the effective date of a supplier's billing privileges is an "initial determination" subject to review under 42 C.F.R. Part 498.  42 C.F.R. § 498.3(a)(1), (b)(15); Victor Alvarez, M.D., DAB No. 2325, at 1 (2010).  A supplier may request an ALJ hearing and, if dissatisfied with the ALJ's decision, may request review from the Departmental Appeals Board (Board).  42 C.F.R. § 498.5(f).

Standard of Review

The Board's "standard of review on a disputed factual issue is whether the ALJ decision is supported by substantial evidence in the record as a whole."  Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider's or Supplier's Enrollment in the Medicare Program (Guidelines), accessible at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/enrollment/index.html.  The Board's standard of review on a disputed conclusion of law is whether the ALJ decision is erroneous.  Id.

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Analysis

1.  The ALJ did not err in deciding this matter on the written record.

We first address Petitioner's assertion of error in the ALJ's determination not to conduct an in-person hearing.  In its two-paragraph submission, Petitioner offers no explanation of the basis for objecting to the ALJ deciding the case on the written record.  RR at 1.  Petitioner merely states that he requested a hearing, that the ALJ decided the matter without holding a hearing, and that Petitioner disagrees "with the decision."  Id.  Construing this statement as expressing disagreement with the procedure by which the ALJ issued the decision, we find that the ALJ followed appropriate procedures and that Petitioner had ample notice of when an in-person hearing might be unnecessary.

The ALJ's Acknowledgment and Pre-hearing Order informed the parties that an in‑person hearing, as opposed to a review based on the written record, would be held only if a party filed with its pre-hearing submission the written direct testimony of its witnesses and the opposing party specifically requested to cross-examine any of those witnesses.  Pre-hearing Order at 6.  The sole purpose of convening in person would thus be to allow cross-examination.  Deciding the case based on the written record, including any written direct testimony, is consistent with due process so long as in-person cross-examination is available.  Ronald J. Grason, M.D., DAB No. 2592, at 3 (2014) (noting that ALJ decided case on written record where neither party sought to cross-examine witnesses), aff'd, Grason v. Burwell, No. 2:14-cv-2267 (C.D. Ill. Feb. 23, 2016), aff'd, 659 F. App'x 899 (7th Cir. 2016); Keller Orthotics, Inc., DAB No. 2588, at 4 (2014) (noting same).  The Board has therefore long held that convening a hearing would be pointless, where no witness testimony is offered or all witness testimony is completed in writing and no cross-examination is sought.  See, e.g., Marcus Singel, D.P.M., DAB No. 2609, at 6 (2014) ("With no proposed testimony offered or challenged, there was nothing to be gained from holding an in-person hearing. Accordingly, the ALJ was not required to convene a hearing, despite Petitioner's request for one."); Brenda Lee Jackson, DAB No. 2903, at 13 (2018).  Here, as in both Singel and Jackson, Petitioner was informed of the procedure and did not object to it before the ALJ, and will not be heard to complain of it belatedly only after an adverse decision.  See Singel at 5; Jackson at 13.

In this case, neither party submitted the written direct testimony of any witness.  The ALJ correctly determined, therefore, that an in-person hearing was unnecessary.

2.  The only determination the Board is authorized to review in this case is the effective date of Petitioner's reactivation enrollment application.

Petitioner notes that the ALJ stated "I have no authority to hear and decide these arguments for the reasons that I have explained."  RR at 1 (quoting ALJ Decision at 3).  Petitioner then asks the Board to provide guidance on whom to "approach r/t this case."

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Id.  The arguments which the ALJ found he lacked authority to hear were Petitioner's "challenge to the contractor's decisions to reject its April 3, 2017 renewal application and subsequently to deactivate Petitioner's billing privileges," and Petitioner's contention that it timely "responded to the contractor's request for information and that it supplied the contractor with 'all clarifications and corrections . . . .'"  ALJ Decision at 3 (citing Petitioner's brief to the ALJ at 1 and quoting Petitioner's brief at 2.).  Petitioner further argues to us that the ALJ is factually mistaken in finding that the rejected application was submitted April 3, 2017, i.e., after the March 31, 2017 deadline, because Petitioner asserts the application was postmarked March 30, 2017.  RR at 1.

The ALJ correctly held that he had no authority to review whether the contractor properly rejected Petitioner's original reenrollment application or whether the consequent deactivation of Petitioner's billing privileges was justified.  The regulations in 42 C.F.R. Part 498 provide for Medicare providers and suppliers to appeal only certain specified categories of CMS determinations to an ALJ and, if dissatisfied with the ALJ decision, to the Board.  42 C.F.R. §§ 498.3(b), 498.5.  Appealable determinations include those related to the denial or revocation of a provider or supplier's Medicare billing privileges as well as those establishing the effective date of a Medicare provider agreement or supplier approval.  Id. §§ 498.5(l), 498.3(b)(15); see also Alvarez at 3 ("[W]e conclude that a determination of a supplier's effective date of enrollment in Medicare is an initial determination subject to appeal.").  In contrast, the regulations do not allow suppliers to appeal the rejection of an enrollment application or the deactivation of billing privileges.  42 C.F.R. § 424.525(d) ("Enrollment applications that are rejected are not afforded appeal rights."); Willie Goffney, Jr., M.D., DAB No. 2763 (2017), aff'd, Goffney v. Azar, No. 2:17-cv-8032 (C.D. Cal. Sept. 25, 2019), appeal docketed, No. 19-56368 (9th Cir. Nov. 25, 2019); see also 42 C.F.R. § 424.545(b) ("A provider or supplier whose billing privileges are deactivated may file a rebuttal.").

While we understand Petitioner wishes guidance on channels to seek relief related to the rejection and deactivation, the regulations do not provide for any further administrative review of these actions.  (A rebuttal to the contractor itself is permitted after a deactivation, but no appeal beyond the contractor.)  Because we cannot review the basis for the rejection or deactivation, any disputes (of fact or law) about the contractor's reasons are beyond the scope of our review.

As far as the date on which the initial reactivation application was submitted, as CMS points out, Petitioner's claim to have mailed (and thus postmarked) the application on March 30, 2017 is not inconsistent with the ALJ's finding that it was received by the contractor on April 3, 2017.  CMS Br. at 8 (citing CMS Ex. 2).  While Petitioner may object to the ALJ stating that Petitioner "waited until" April 3, 2017 to file its application, RR at 1 (referencing ALJ Decision at 2), the Board has expressly held that the "date of filing" of an application is the date it is received by the contractor not the date it is placed in the mail.  Gatzimos at 1.  In any case, the date on which the original application was

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filed is not relevant to whether the effective date of reactivation was correct.  Petitioner does not dispute that the reactivation application which the contractor was able to process to approval was submitted on May 30, 2017, the date on which Petitioner's reactivation was made effective, ending the gap in billing privileges.

In short, the only action in the reconsidered determination that is appealable in this case is the determination of the effective date of the reactivation of Petitioner's billing privileges.  The Board, therefore, cannot and will not address Petitioner's arguments concerning the rejection or deactivation.

3.  The ALJ's conclusion that the effective date of reactivation of Petitioner's billing privileges is May 30, 2017, is supported by substantial evidence and free from legal error.

The effective date of the reactivation of a supplier's Medicare billing privileges is the later of either the date when the enrollment application that was approved was filed with the contractor or the date when the supplier first began providing services at a new practice location (if the latter is applicable).  42 C.F.R. § 424.520(d).  Only the first alternative is applicable here.  The date of filing, as explained above, is the date that the contractor receives a signed enrollment application the contractor subsequently approves.  Id.; 73 Fed. Reg. at 69,766-69; Gatzimos at 5.  As also explained, the date of filing for the approved reactivation application was May 30, 2017.  Petitioner has not identified any error of law or any evidence undercutting the relevant facts.

Because Petitioner's billing privileges were deactivated effective May 12, 2017 and reactivated effective May 30, 2017, a gap exists from May 12, 2017 through May 29, 2017, during which Petitioner did not have valid Medicare billing privileges.

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Conclusion

For the reasons explained above, the Board affirms the ALJ Decision in its entirety.