Lori Crowley, DPT, DAB CR5102 (2018)

DECISION

I grant summary judgment sustaining the determination of a Medicare contractor to reactivate the Medicare billing privileges of Petitioner, Lori Crowley, DPT, effective June 28, 2017.

I.  Background

Petitioner requested a hearing in order to challenge the effective date of reactivation of her Medicare billing privileges.  The Centers for Medicare & Medicaid Services (CMS) moved for summary judgment, filing a brief and 8 proposed exhibits that are identified as CMS Ex. 1-CMS Ex. 8.  Petitioner opposed the motion and filed a letter in which she explained her contention that the contractor erred in deactivating her billing privileges.  She filed 10 proposed exhibits that she identified as P. Ex. 1-P. Ex. 10.  P. Ex. 1 is her argument opposing CMS’s motion.

There are no disputed issues of material fact in this case.  Consequently, it is unnecessary that I admit the parties’ exhibits into evidence.  I cite to some of them, however, but only to illustrate facts that are not in dispute.

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II. Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether the contractor properly established June 28, 2017, to be the effective date of reactivation of Petitioner’s Medicare billing privileges.

B. Findings of Fact and Conclusions of Law

This case is governed by a regulation, 42 C.F.R. § 424.540.  In relevant part, the regulation states:

(a) Reasons for deactivation.  CMS may deactivate the Medicare billing privileges of a provider or supplier for any of the following reasons: . . .

(3) The provider or 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.

(b) Reactivation of billing privileges.

(1) When deactivated for any reason other than nonsubmission of a claim, the provider or supplier must complete and submit a new enrollment application to reactivate its Medicare billing privileges or, when deemed appropriate, at a minimum, recertify that the enrollment information currently on file with Medicare is correct.

A contractor’s decision to deactivate a provider’s reimbursement privileges is not a determination that gives hearing rights to the affected individual or entity.  See 42 C.F.R. §§ 498.3(b) and (d).  Consequently, a provider or supplier whose Medicare billing privileges are deactivated may not challenge the contractor’s decision to deactivate.  I have no authority to decide that challenge.

CMS has published guidance to its contractors concerning what effective participation date to assign to a supplier or provider that seeks to reactivate its participation.  That date shall be the date when that the contractor receives a re-enrollment application that it processes to completion.  Medicare Program Integrity Manual (MPIM), § 15.27.1.2.  That guidance is consistent with regulatory requirements governing the effective date of participation of newly participating suppliers and providers.  42 C.F.R. § 424.520(d); Willie Goffney Jr., M.D., DAB No. 2763 (2017).

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Given that, the only question I may consider is whether the contractor (or, in this case, a reconsideration hearing officer) properly assigned an effective reactivation date to a provider or a supplier whose billing privileges are deactivated.  The propriety of the contractor’s action in determining to reactivate is governed by 42 C.F.R. § 424.520(d).  The regulation states that:

The effective date for billing privileges for physicians . . . is the later of . . . [t]he date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or . . . [t]he date that the supplier first began furnishing services at a new practice location.

The earliest possible effective reactivation date that a contractor may assign to a provider or supplier whose billing privileges are deactivated is the date that the provider or supplier files a new enrollment application with the contractor that the contractor subsequently approves.  The contractor has no authority to assign a retroactive reactivation date to a provider or a supplier whose billing privileges were deactivated on a date prior to the date when the provider or supplier submits a new enrollment application for the purpose of reactivating his or her billing privileges.  Moreover, I do not have authority to order a contractor to assign a retroactive reactivation date.

The undisputed facts of this case are that on November 11, 2016, a Medicare contractor sent a letter to Petitioner advising her that she needed to revalidate her Medicare enrollment by no later than January 31, 2017.  CMS Ex. 1.

Petitioner did not respond to this request.  On February 28, 2017, the contractor sent a notice to Petitioner in which it advised her that her revalidation application was past due.  CMS Ex. 3.  Petitioner did not respond to this notice.  On April 21, 2017, the contractor again notified Petitioner, telling her that it had deactivated her Medicare enrollment due to her failure to revalidate.  CMS Ex. 4.

Petitioner filed an application to revalidate her billing privileges on June 28, 2017.  CMS Ex. 5.  The contractor accepted this application and reactivated Petitioner’s Medicare billing privileges effective June 28, 2017.  CMS Ex. 6.1

June 28 is the earliest date on which Petitioner’s billing privileges may be reactivated because that is the date on which the contractor received Petitioner’s application for

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reactivation that the contractor accepted.  Neither the contractor nor I may assign Petitioner a reactivation date that is retroactive to a date that is earlier than June 28, 2017.

Petitioner protests that the contractor’s notices were not sent to her current practice address but rather, to another address that is not her primary practice location.  She asserts that she never saw the contractor’s letter requesting that she revalidate her Medicare billing privileges.  Nor, according to Petitioner, did she see the contractor’s subsequent notices.  Thus, Petitioner contends that her Medicare billing privileges were deactivated through no fault of her own.

Petitioner’s argument is not one that I have no authority to hear and decide.  Petitioner effectively appeals the contractor’s action to deactivate her billing privileges.  As I note above, a decision by a contractor to deactivate a participating provider or supplier’s billing privileges is not appealable.

Finally, I note that there is an equitable aspect to Petitioner’s argument.  Effectively, she asserts that it is unfair that she be penalized for not responding to notices that he contends she never received.  This is also an argument that I have no authority to hear and decide inasmuch as equitable challenges to CMS’s determinations are not appealable.  U.S. Ultrasound, DAB No. 2302 at 8 (2010).

• 1. In fact, the contractor appears to have believed it received Petitioner’s revalidation application on June 29, 2017, and used that date as the effective date of reactivation.  CMS Exs. 6 at 2, 8 at 2.  However, CMS concedes that Petitioner submitted her enrollment application on June 28, 2017.