Dino J. Delaportas, MD, DAB CR5539 (2020)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through a CMS contractor, determined that the effective date for reactivation of the Medicare billing privileges for Dino J. Delaportas, M.D. (Petitioner) was October 12, 2018. Petitioner requested an administrative law judge (ALJ) hearing to dispute this effective date. Because the CMS contractor approved Petitioner's revalidation enrollment application that it received on October 12, 2018, the CMS contractor correctly determined that the effective date for the reactivation of billing privileges was October 12, 2018. Therefore, I affirm CMS's determination.

I. Background and Procedural History

Dr. Delaportas had been enrolled in the Medicare program before 2018. In a June 4, 2018 notice, the CMS contractor informed Dr. Delaportas that he needed to revalidate his Medicare enrollment record by August 31, 2018. CMS Ex. 7 at 1; CMS Ex. 8 at 1. This notice also stated that failure to respond to the notice could result in deactivation of his Medicare enrollment, causing a "gap in [his] reimbursement" during the period of deactivation. CMS Ex. 7 at 1; CMS Ex. 8 at 1.

Page 2

On July 16, 2018, the CMS contractor received a revalidation application from Dr. Delaportas. CMS Ex. 7 (stamp indicating 18197 on the Julian calendar). In an August 7, 2018 notice, the CMS contractor requested additional information in order to complete the revalidation application. CMS Ex. 6. The CMS contractor stated that it may reject the revalidation application if Petitioner did not submit the needed information within 30 days. CMS Ex. 6 at 2. The CMS contractor sent this notice by email and left a voicemail message for Petitioner. CMS Ex. 6 at 1; CMS Ex. 9. The email notice was sent to Amy Bogart, the person listed as Petitioner's primary contact in the Provider Enrollment, Chain and Ownership System (PECOS), at her listed email address. CMS Ex. 10 at 7; CMS Ex. 7 at 29.

In a September 11, 2018 notice, the CMS contractor informed Dr. Delaportas that it had stopped his Medicare billing privileges as of that date because he had not successfully revalidated his enrollment and "didn't respond to our requests for more information." CMS Ex. 5 at 2. The notice stated that "[w]e will not pay any claims after this date." CMS Ex. 5 at 2.

On October 12, 2018, CMS contractor personnel spoke with Petitioner's staff and stated that Petitioner needed to file a new CMS-855I application. CMS Ex. 9. On October 12, 2018, the CMS contractor received a reactivation/revalidation application from Petitioner. CMS Ex. 4. In an October 23, 2018 initial determination sent via email, the CMS contractor reactivated Dr. Delaportas's billing privileges, but indicated that there would be a gap in billing privileges from September 11, 2018 through October 11, 2018. CMS Ex. 3 at 2-3.

Dr. Delaportas timely requested reconsideration explaining that the "mailroom/provider enrollment depart[ment] lost the 3rd application and/or pages were mixed up" and that "initial rep could not or would not investigate." CMS Ex. 2 at 1.

On January 26, 2019, the CMS contractor issued an unfavorable reconsidered determination. CMS Ex. 1. In the notice, the CMS contractor stated that Dr. Delaportas's Medicare enrollment was deactivated for failing to respond to a development request. CMS Ex. 1 at 2. The CMS contractor upheld its earlier determination that the gap in billing privileges remained from September 11, 2018 through October 11, 2018 (i.e., Petitioner's reactivation effective date was October 12, 2018). CMS Ex. 1 at 2. The CMS contractor did so because "[o]n October 12, 2018, Dina Delaportas submitted a 2nd revalidation application, which was processed and approved." CMS Ex. 1 at 2.

Petitioner timely requested an ALJ hearing to dispute the reconsidered determination. On February 28, 2019, I issued an Acknowledgment and Prehearing Order (Order), which established a schedule for prehearing exchanges. In response, CMS filed a brief, which

Page 3

included a motion for summary judgment, and ten exhibits (CMS Exs. 1-10). Petitioner submitted a response (P. Br.) without exhibits.

II. Decision on the Written Record

I admit all of the proposed exhibits into the record because Petitioner did not object to the admission of CMS's exhibits. Prehearing Order ¶ 7; Civil Remedies Division Procedures (CRDP) § 7.

The Prehearing Order advised the parties to submit written direct testimony for each witness and that an in-person hearing would only be held if a party requested to cross-examine a witness. Prehearing Order ¶¶ 8-10; CRDP §§ 16(b), 19(b). Neither party has offered any written direct testimony. Therefore, I issue this decision based on the written record. Prehearing Order ¶¶ 10-11; CRDP § 19(b).

III. Issue

Whether CMS had a legitimate basis to assign October 12, 2018, as the effective date for the reactivation of Petitioner's Medicare billing privileges.

IV. Jurisdiction

I have jurisdiction to hear and decide this case. 42 C.F.R §§ 498.3(b)(15), 498.5(l); Victor Alvarez, M.D., DAB No. 2325 at 8-12 (2010); see also 42 U.S.C. § 1395cc(j)(8).

V. Findings of Fact, Conclusions of Law and Analysis

My findings of fact and conclusions of law are set forth in italics and bold font. The Social Security Act (Act) authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations governing the enrollment process for providers and suppliers. 42 U.S.C. §§ 1302, 1395cc(j). A "supplier" is "a physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services" under the Medicare provisions of the Act. 42 U.S.C. § 1395x(d); see also 42 U.S.C. § 1395x(u).

A supplier must enroll in the Medicare program to receive payment for covered Medicare items or services. 42 C.F.R. § 424.505. "Enroll/Enrollment means the process that Medicare uses to establish eligibility to submit claims for Medicare-covered items and services . . . ." 42 C.F.R. § 424.502. A supplier seeking billing privileges under the Medicare program must "submit enrollment information on the applicable enrollment application. Once the . . . supplier successfully completes the enrollment process . . . CMS enrolls the . . . supplier into the Medicare program." 42 C.F.R. § 424.510(a). CMS then establishes an effective date for billing privileges under the requirements stated in

Page 4

42 C.F.R. § 424.520(d) and may permit limited retrospective billing under 42 C.F.R. § 424.521.

To maintain Medicare billing privileges, suppliers must revalidate their enrollment information at least every five years; however, CMS reserves the right to require revalidation at any time. 42 C.F.R. § 424.515. When CMS notifies suppliers that it is time to revalidate, the suppliers must submit the appropriate enrollment application, accurate information, and supporting documents within 60 calendar days of CMS's notification. 42 C.F.R. § 424.515(a)(2).

CMS can deactivate an enrolled supplier's Medicare billing privileges if the enrollee fails to comply with revalidation requirements. 42 C.F.R. § 424.540(a)(3). When CMS deactivates a supplier's Medicare billing privileges, "[n]o payment may be made for otherwise Medicare covered items or services furnished to a Medicare beneficiary." 42 C.F.R. § 424.555(b). If CMS deactivates a supplier's billing privileges due to an untimely response to a revalidation request, the enrolled supplier may apply for CMS to reactivate its Medicare billing privileges by completing a new enrollment application or, if deemed appropriate, recertifying its enrollment information that is on file. 42 C.F.R. § 424.540(b)(1).

1. Petitioner submitted a revalidation enrollment application (CMS-855I) via fax on October 12, 2018, to the CMS contractor. The CMS contractor received the enrollment application on October 12, 2018, and ultimately approved that enrollment application.

Petitioner submitted his revalidation enrollment application via fax on October 12, 2018. CMS Ex. 4 at 1. CMS later approved this revalidation enrollment application. CMS Ex. 3 at 2.

2. The effective date for Petitioner's Medicare billing privileges is October 12, 2018.

The effective date for Medicare billing privileges for physicians, non-physician practitioners, and physician or non-physician practitioner organizations is the later of the "date of filing" of a Medicare enrollment application that is subsequently approved or the date the supplier first began furnishing services at a new practice location. 42 C.F.R. § 424.520(d). The "date of filing" is the date that the CMS contractor "receives" a signed enrollment application that the Medicare contractor is able to process to approval. 73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008); Donald Dolce, M.D., DAB No. 2685 at 7-8 (2016). The Departmental Appeals Board has applied these effective date provisions to reactivation cases, and its decisions doing so are consistent with § 424.555(b)'s prohibition on reimbursing services while a provider or supplier is deactivated. Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 at 6-7 (2019).

Page 5

In the present case, the CMS contractor initially determined that Petitioner's effective date for reactivation of his Medicare billing privileges was October 12, 2018. CMS Ex. 3 at 2. On reconsideration, the CMS contractor affirmed the effective date of reactivation. CMS Ex. 1 at 2. The CMS contractor correctly applied the regulations in the reconsidered determination because October 12, 2018, is the date they received a revalidation application that they were able to process to approval. CMS Ex. 4. Furthermore, Petitioner does not dispute that the enrollment application processed to approval was received by the CMS contractor on October 12, 2018. Therefore, the CMS contractor correctly established October 12, 2018, as the effective date of reactivation.

In his brief, Petitioner argues generally that "communication lapses" with the CMS contractor resulted in the suspension of his billing privileges. P. Br. at 2. Specifically, Petitioner argues that the development letter emailed by the CMS contractor to his point of contact neither included a mailing address for a recipient nor "a processing analyst's name and/or email address for the analyst processing the application for re-validation." P. Br. at 1. Additionally, Petitioner contends that he never received the development letter that the contractor emailed to Petitioner's point of contact on August 7, 2018. P. Br. at 2; CMS Ex. 6. Furthermore, Petitioner argues that the deactivation penalty for not filling out his 'country of birth' on the first revalidation application is overly harsh. P. Br. at 2. Lastly, Petitioner asserts that his billing privileges that were suspended from September 11, 2018 through October 11, 2018, should be reinstated because he treated patients in "good faith." P. Br. at 2.

These arguments are, unfortunately, related to the rejection of Petitioner's revalidation application and the deactivation of Petitioner's billing privileges. I do not have the authority to review CMS's decision to reject an application or to deactivate Petitioner's Medicare billing privileges. The decision to reject an application is not subject to further appeal. 42 C.F.R. § 424.525(d). The decision to deactivate billing privileges is not an "initial determination" subject to appeal, and deactivation decisions have a separate review process involving the submission of a rebuttal to CMS. See 42 C.F.R. §§ 424.545(b), 498.3(b); see also Willie Goffney, Jr., M.D., DAB No. 2763 at 4-5 (2017), aff'd sub nom. Goffney v. Azar, No. CV 17-8032 MRW (C.D. Cal. Sept. 25, 2019). As indicated above in the Issue and Jurisdiction sections of this decision, I only have authority to decide whether the date of reactivation of Petitioner's billing privileges is correct based on the facts in this case and the law. Ark. Health Grp., DAB No. 2929 at 12 (2019) ("Where, as here, the contractor deactivated Petitioner's billing privileges, the issue for us (and the ALJ) is the effective date of reactivation.").

Further, Petitioner's arguments amount to a request for equitable relief. I do not have authority to provide equitable relief based on principles of fairness and thus cannot change Petitioner's effective date for that reason. US Ultrasound, DAB No. 2302 at 8 (2010) ("[n]either the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory

Page 6

requirements."). For the reasons already explained above, I conclude that Petitioner's reactivation date is correct.

VI. Conclusion

I affirm CMS's determination that Petitioner's effective date for Medicare billing privileges is October 12, 2018.