Muhammad M. Kudaimi, M.D., DAB CR5110 (2018)

DECISION

Petitioner, Muhammad M. Kudaimi, M.D., is a physician practicing in Munster, Indiana.  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 January 19, 2016.  Petitioner now challenges that effective date.

Because Petitioner filed his subsequently-approved enrollment application on January 19, 2016, I find that January 19 is the correct effective date of his enrollment, and CMS may allow him to bill retrospectively for up to thirty days prior to that effective date (which would be December 20, 2015).  I have no authority to review the deactivation.  Urology Grp. of NJ, LLC, DAB No. 2860 (2018); Willie Goffney, Jr., M.D., DAB No. 2763 at 3-5 (2017).

Background

In a letter dated January 28, 2016, the Medicare contractor, Wisconsin Physicians Service Insurance Corporation, advised Petitioner Kudaimi that it approved his Medicare enrollment with an “effective date” of December 20, 2015.  CMS Exhibit (Ex.) 6.  In fact, as I explain below, this represents the date that Petitioner could begin billing the Medicare program; his actual “effective date” of enrollment was January 19, 2016.

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Petitioner sought reconsideration, asking that the effective date of his enrollment be made retroactive to June 1, 2015, so that there would be no lapse in his program participation.1 CMS Ex. 7 at 1.  In a reconsidered determination, dated March 15, 2016, the contractor denied Petitioner an earlier effective date.  CMS Ex. 8.

Petitioner appealed.

Although CMS has moved for summary judgment, I find that this matter may be decided on the written record, without considering whether the standards for summary judgment are satisfied.  In my initial order, I instructed the parties to list their proposed witnesses (if any) and to submit their written direct testimony.  Acknowledgment and Pre-hearing Order at 3, 5 (¶¶ 4, 8).  CMS has no witnesses.  Petitioner lists himself as the sole witness and submits a written declaration.  However, CMS has not asked to cross-examine him.  Because there will be no cross-examination of witnesses, an in-person hearing would serve no purpose.  See Pre-hearing Order at 5 (¶ 10).  I may therefore decide the case based on the written record without considering whether the standards for summary judgment are satisfied.

With its brief (CMS Br.), CMS submits nine exhibits (CMS Exs. 1-9).  Petitioner submits one exhibit, his written declaration (P. Ex. 1).  In the absence of any objections, I admit into evidence CMS Exs. 1-9 and P. Ex. 1.

Discussion

Petitioner filed his subsequently-approved application on January 19, 2016, and his Medicare enrollment can be no earlier than that date.  42 C.F.R. § 424.520(d).2

Enrollment.  Petitioner Kudaimi 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 it furnishes to program beneficiaries, a prospective 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. § 424.502.3  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.  The effective date for its billing privileges “is the later of the date of filing” of a subsequently-approved enrollment application or “[t]he date [an enrolled physician] . . . first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d) (emphasis added).  If it satisfies certain requirements, CMS will allow a supplier to bill retrospectively for up to 30 days prior to the effective date.  42 C.F.R. § 424.521(a)(1).

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 his 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.  Urology Grp., DAB No. 2860 at 7-9; Goffney, DAB No. 2763 at 7.

Petitioner’s deactivation and reenrollment.  In a notice dated December 17, 2014, the contractor directed Petitioner to revalidate his Medicare enrollment by reviewing, signing and submitting a revalidation application through the PECOS system or by mailing to the contractor a completed CMS-855 Medicare enrollment application.  CMS Ex. 1.  The notice cautioned that failing to submit the application within 60 calendar days could result in the practice’s Medicare billing privileges being deactivated.  CMS Ex. 1 at 3.  Petitioner concedes that he received the notice, but maintains that he needed additional

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time to gather documents.  P. Br. at 1-2.4  He complains that the contractor did not subsequently call him or send additional notices – or at least, he could not recall that the contractor did so.  P. Ex. 1 (Kudaimi Decl. ¶¶ 2, 3, 4); P. Br. at 2.  But the circumstances surrounding Petitioner’s deactivation are not relevant to this decision.  Urology Grp., DAB No. 2860 at 6 (“The regulations do not grant suppliers the right to appeal deactivations”); Goffney, DAB No. 2763 at 7 (“Only facts relevant to the effective date resulting from the . . . application were material to the ALJ Decision”).  Moreover, even if the issue were reviewable, one notice should be more than sufficient to apprise a Medicare supplier of his obligation to recertify his enrollment information.5

In a notice dated July 20, 2015, the contractor advised Petitioner that his Medicare billing privileges were deactivated, effective that day, because he failed to respond to the revalidation request.  To reactivate, he needed to submit an enrollment application.  CMS Ex. 4.

On January 19, 2016, the contractor received Petitioner’s reenrollment application.  CMS Ex. 5; see CMS Ex. 5 at 6.6  Thus, pursuant to section 424.520(d), the date Petitioner filed his subsequently-approved enrollment application – January 19, 2016 – is the correct effective date of enrollment.  Urology Grp., DAB No. 2860 at 7-9; Goffney, DAB No. 2763 at 7.

Pursuant to 42 C.F.R. § 424.521(a)(1), CMS has allowed Petitioner to bill retrospectively, giving him an effective billing date of December 20, 2015.  Medicare contractors have created confusion because they are inclined to conflate the effective date with the retrospective billing date, as the contractor did here.  The original notice letter gives December 20, 2015 as the “Effective Date,” which it is not.  It is the retrospective billing date.  CMS Ex. 6 at 1.  The reconsidered determination does not correct the inaccuracy.  CMS Ex. 8.  The distinction is important; I have the authority to review “[t]he effective date of . . . supplier approval.”  42 C.F.R. § 498.3(b)(15).  But nothing in the regulations gives me the authority to review CMS’s determinations regarding retrospective billing.

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Conclusion

Because Petitioner filed his subsequently-approved reenrollment application on January 19, 2016, CMS properly granted his Medicare reenrollment effective that date.

• 1. The June 1 date was likely in error.  The contractor deactivated Petitioner’s Medicare enrollment on July 20, 2015, which would be the effective date needed to avoid a lapse in program participation.  CMS Ex. 4.
• 2. I make this one finding of fact/conclusion of law.
• 3. CMS’s electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).
• 4. The notice letter advised Petitioner that he could request an additional 60 days if he needed additional time to comply.  CMS Ex. 1 at 2.  Petitioner did not request the extension.
• 5. CMS maintains that, in keeping with its policies, the contractor called and left messages and sent an additional notice letter.  CMS Exs. 2, 3.  CMS presents actual evidence that it did so, and Petitioner does not definitively deny receiving voicemails or notices.  P. Ex. 1 (Kudaimi Decl. ¶¶ 2, 3, 4) (asserting that he has “no recollection”).  But these facts are not relevant.
• 6. Vertically along the left margin of the application is a date stamp:  “16019.”  Medicare contractors stamp paper applications with a “Julian date stamp,” which counts the days of the year consecutively.  The first two digits indicate the year – 2016.  The next three digits indicate the date – the 19th day of 2016 or January 19, 2016.