Marie E. Risenmay, PT, DAB CR5588 (2020)

DECISION

Petitioner, Marie E. Risenmay, PT, is a physical therapist, licensed in Oregon, who participates in the Medicare program as a supplier of services.  After her Medicare billing privileges were deactivated, she applied to reenroll in the program.  The Centers for Medicare & Medicaid Services (CMS) granted the application, effective May 11, 2017, resulting in an eight-day coverage lapse.  Petitioner now challenges that effective date and asks that the lapse in coverage be eliminated.

Because Petitioner filed her subsequently-approved enrollment application on May 11, 2017, I find that May 11 is the correct effective date for her enrollment.  Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 (2019); Urology Grp. of NJ, LLC, DAB No. 2860 (2018); Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017), aff'd sub nom. Goffney v. Azar, No. CV 17-8032 MRW (C.D. Cal. Sept. 25, 2019).

Background

In notices dated June 14, 2017, and June 27, 2017, the Medicare contractor, Noridian Healthcare Solutions, advised Petitioner that it approved her Medicare enrollment,

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although she was subject to a lapse in coverage from May 2 through May 10, 2017.  CMS Exs. 4, 5, 6.  Petitioner requested reconsideration.  CMS Ex. 2.

In a reconsidered determination, dated August 2, 2017, the contractor affirmed the coverage lapse.  CMS. Ex. 1.  Petitioner appealed.

CMS moves for summary judgment.  Because neither party proposes any witnesses, an in-person hearing would serve no purpose.  See Acknowledgment and Pre-hearing Order at 3, 5 (¶¶ 4, 10) (November 16, 2017).  I may therefore decide this case based on the written record, without considering whether the standards for summary judgment are satisfied.

CMS submits its motion and brief (CMS Br.) with 11 exhibits (CMS Exs. 1-11).  Petitioner submits a letter argument (P. Br.) with four exhibits (P. Exs. 1-4).  In the absence of any objections, I admit into evidence CMS Exs. 1-11 and P. Exs. 1-4.  See Acknowledgment and Pre-hearing Order at 5 (¶ 7).

Discussion

Petitioner filed her subsequently-approved enrollment application on May 11, 2017, and her reactivated Medicare enrollment can be no earlier than that date.  42 C.F.R. § 424.520(d).1

Enrollment.  Petitioner Risenmay 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 furnished 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.

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. § 424.502.2  When CMS determines that a

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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.  For a non-physician practitioner, the effective date for billing privileges "is the later of the date of filing" a subsequently-approved enrollment application or "the date that the supplier first began furnishing services at a new practice location."  42 C.F.R. § 424.520(d) (emphasis added).

Revalidation and Deactivation.  To maintain her billing privileges, a supplier must, at least every five years, resubmit and recertify the accuracy of her 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 her 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 her enrollment information, CMS may deactivate her billing privileges, and no Medicare payments will be made.  42 C.F.R. §§ 424.540(a)(3); 424.555(b).  To reactivate her 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.  Sokoloff, DAB No. 2972 at 6-7; Urology Grp., DAB No. 2860 at 7; Goffney, DAB No. 2763 at 7.

I have no authority to review a deactivation.  Sokoloff, DAB No. 2972 at 6; Ark. Health Grp., DAB No. 2929 at 7-9 (2019).

Petitioner's deactivation and reenrollment.  In a notice letter, dated December 15, 2016, the contractor directed Petitioner Risenmay to revalidate her Medicare enrollment by updating or confirming the information in her record.  The letter directed Petitioner to the PECOS website and explained that a supplier could revalidate through the PECOS system or by mailing to the contractor a completed CMS-855 Medicare enrollment application.  The letter warned that Petitioner had to revalidate by February 28, 2017, or risk her Medicare enrollment being deactivated; the letter explained that, during the period of deactivation, Medicare would not pay for the services rendered.  CMS Ex. 11.

The contractor received no response.

The contractor sent a follow-up letter on March 24, 2017, reminding Petitioner that she had not revalidated her Medicare enrollment as requested and again warning that, if she

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failed to do so, her Medicare enrollment would be deactivated; she would not be paid for services rendered during the period of deactivation.  CMS Ex. 10.

Again, the contractor received no response.

By letter dated May 19, 2017, the contractor advised Petitioner that her billing privileges were stopped, effective May 2, because she had not revalidated her enrollment record.  CMS Ex. 9.

Petitioner maintains that she did not receive any of these notices, and the evidence supports her claim.  The contractor sent them to the address of her former employer, "Hands On Physical Therapy."  According to Petitioner, she stopped working there in October 2014.  P. Br.  CMS acknowledges that the notices were all sent to Hands On, and that, in August 2016, Petitioner informed the contractor of her new association with "Green Ridge Physical Therapy & Wellness" (her current employer).  Nevertheless, according to CMS, suppliers may have more than one practice location, and Petitioner did not report that she had ended her relationship with Hands On.  CMS Br. at 10-11.  Petitioner asserts that someone must have reported a break between Petitioner and Hands On because the PTAN (Provider Access Transaction Number) they shared was labeled "non-participating."  CMS Ex. 5 at 1; P. Ex. 3 at 1.  CMS has not responded to or explained this apparent discrepancy.  But, the question of whether or not Petitioner received the notices would pertain to the deactivation of her billing privileges and, as explained below, is ultimately not relevant to the only issue in this case – the effective date of Petitioner's reenrollment.

Petitioner learned of the deactivation when the contractor started denying her claims.  P. Br.  She argues that, because she did not receive any of the revalidation notices, she should not be subject to any lapse in coverage and asks that her reenrollment be made retroactive to May 2.  No matter how compelling the circumstances, I have no authority to review a deactivation.  Ark. Health Grp., DAB No. 2929 at 7-9, and cases cited therein.

The parties agree that, on May 11, 2017, Petitioner filed a Medicare enrollment application, which, after receiving some additional documentation, the contractor approved.  CMS Ex. 1 at 2; see CMS Ex. 2 (referring to the lapse in coverage from May 2 through 10, 2017); CMS Ex. 8; P. Br.  Thus, pursuant to section 424.520(d), the date Petitioner filed her subsequently-approved enrollment application – May 11, 2017 – is the correct effective date of reenrollment.  Sokoloff, DAB No. 2972 at 6-7; Urology Grp., DAB No. 2860 at 7-9; Goffney, DAB No. 2763 at 7.

I have no authority to grant Petitioner an earlier effective date based on her equitable and policy arguments.  Sokoloff, DAB No. 2972 at 9.

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Conclusion

Because Petitioner filed her subsequently-approved reenrollment application on May 11, 2017, CMS properly granted her Medicare reenrollment effective that date.

• 1. I make this one finding of fact/conclusion of law.
• 2. CMS's electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).