Top Imaging Inc., DAB CR5593 (2020)

DECISION

I sustain the determination of a Medicare contractor, as affirmed on reconsideration, to assign Petitioner, Top Imaging, Inc., an effective date of May 8, 2019 for reactivation of its Medicare billing privileges.1

I. Background

The Centers for Medicare & Medicaid Services (CMS) moved for summary judgment, asserting that there are no facts in dispute.  It is unnecessary that I decide whether the criteria for summary judgment are met here because neither CMS nor Petitioner offered

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the testimony of a witness.  An in-person hearing would serve no purpose.  I decide the case based on the parties’ written exchanges.  CMS offered nine exhibits, identified as CMS Ex. 1-CMS Ex. 9.  Petitioner offered four exhibits, identified as P. Ex. 1-P. Ex. 4.  I receive these exhibits into the record.2

II. Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether a Medicare contractor, acting on behalf of CMS, appropriately assigned an effective date of May 8, 2019 to Petitioner for reactivation of its Medicare billing privileges.

B. Findings of Fact and Conclusions of Law

Petitioner, like every participating Medicare supplier, is obligated to revalidate its enrollment and its participation status every five years.  42 C.F.R. § 424.515.  The purpose of doing so is to assure that the information on file with the Medicare contractor concerning Petitioner’s participation status is current and accurate. 

The revalidation process begins with a notification from the contractor to the supplier, telling the supplier that he or she must revalidate his or her participation status.  42 C.F.R. § 424.515(a)(1).  The supplier has 60 days within which to file with the contractor the appropriate form that makes current his or her information on file.  42 C.F.R. § 424.515(a)(2).  CMS or the contractor may deactivate a supplier’s Medicare billing privileges if the supplier fails to file timely the necessary revalidation information.  42 C.F.R. § 424.540(a)(2) and (3).

A supplier whose Medicare billing privileges are deactivated must file a new enrollment application, or at least certify that enrollment information on file with the contractor or CMS is correct, in order to reactivate his or her billing privileges.  42 C.F.R. § 424.540(b)(1).  CMS treats such applications as being equivalent to participation applications for newly enrolled suppliers.  Medicare Program Integrity Manual (MPIM),

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CMS Pub. 100-08, Ch. 15, § 15.29.4.3 (effective March 12, 2019).  This includes establishment of an effective Medicare participation date. 

As a general rule, the effective date for participation in Medicare is the date when the contractor receives an application for participation or reactivation of billing privileges that it determines to be acceptable.  42 C.F.R. § 424.520(b), cross-referencing 42 C.F.R. § 410.33(i).  As a matter of administrative discretion, CMS allows a participating supplier, whether a newly enrolled supplier or one whose billing privileges are reactivated, to file reimbursement claims for items or services provided up to 30 days prior to the effective participation or reactivation date. 

There are instances where the regulations have the effect of precluding a supplier from qualifying for reimbursement for items or services that he or she provided to a Medicare beneficiary before the 30-day period allowed for retroactive reimbursement.  That is the case here.  The contractor deactivated Petitioner’s billing privileges because it failed to reply within 60 days to the contractor’s request that it revalidate Petitioner’s Medicare supplier status.  Months later, Petitioner submitted an application for revalidation (participation) that the contractor determined to be acceptable.  The consequence was that Petitioner lost its right to claim reimbursement for items or services that it provided to Medicare beneficiaries between the date of deactivation of its billing privileges and 30 days prior to the effective date of reactivation of those privileges.  That consequence is entirely consistent with regulatory requirements.

On May 30, 2018, a contractor sent a revalidation request to Petitioner.  CMS Ex. 1.  Petitioner did not reply to this request.  On November 14, 2018, the contractor deactivated Petitioner’s billing privileges due to Petitioner’s failure to file a response to the contractor’s May 30 letter.  CMS Ex. 2.  Petitioner filed a request to reactivate its billing privileges on May 8, 2019.  CMS Ex. 3.  The contractor requested additional information from Petitioner but, eventually, processed the May 8 application to completion.  It assigned Petitioner an effective date for reactivation of its billing privileges of May 8, 2019 (subsequently amended to allow billing for claims generated as early as April 9, 2019).  CMS Exs. 6, 8.

May 8, 2019 was the earliest effective date of reactivation of billing privileges that the contractor could have assigned to Petitioner.  Once Petitioner’s Medicare billing privileges were deactivated, it was not eligible for reimbursement for items or services provided more than 30 days prior to the date of reactivation of its billing privileges.  That date relates directly to the date when Petitioner filed an application for reactivation as mandated by regulations – in this case, May 8, 2019.

Petitioner asserts that it received neither the contractor’s May 30, 2018 request that Petitioner revalidate its billing privileges nor the contractor’s November 14, 2018 letter advising Petitioner that its billing privileges were deactivated.  According to Petitioner,

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the initial notice “was never received by Petitioner as most all correspondence with Medicare was handled by Apex Practice Partners (Apex), Petitioner’s billing company.”  Petitioner’s brief at 2.

I find this argument to be unavailing for three reasons.  First, Petitioner has not asserted that the May 30 request and the subsequent deactivation notice from the contractor were misaddressed.  The address that the contractor used in its notice letters to Petitioner – 13091 Kerry Street, Garden Grove, California 92844 – is the identical address that Petitioner uses as its mailing address.  CMS Ex. 1; CMS Ex. 2; see P. Ex. 1.  Petitioner has not offered any plausible explanation why not one, but two letters sent by the contractor to Petitioner did not arrive at their destination.

Second, these letters served as notice to Petitioner, even if they were received by Petitioner’s billing service and not directly by Petitioner.  If Petitioner designates an entity as its agent for communicating with Medicare or its contractor, then Petitioner is responsible for knowing what that agent sends or receives.  Petitioner concedes that its billing agent received at least the deactivation notice, because it asserts that on November 15, 2018, Apex appealed the contractor’s decision to deactivate Petitioner’s billing privileges.  Petitioner’s brief at 3; see P. Ex. 4.

Third, Petitioner had a duty to file timely an application for reactivation of its billing privileges even if it received no notices from the contractor.  As a participant in Medicare, Petitioner must understand its obligations to the program and abide by program requirements.  Regulations require all suppliers to revalidate their billing privileges every five years.  42 C.F.R. § 424.515.  That requirement imposes a duty on every supplier to file a timely reactivation request whether or not it receives notice that one is due.  See Waterfront Terrace, DAB No. 2320 at 7 (2010).

Petitioner argues also that the contractor was “negligent” because it did not respond to Petitioner’s appeal of the decision to deactivate Petitioner’s billing privileges.  Petitioner’s brief at 3.  However, the contractor had no duty to reply to that appeal.  A decision to deactivate billing privileges is not an appealable initial determination and confers no right to reconsideration or a hearing on a provider or supplier whose billing privileges are deactivated.  42 C.F.R. §§ 498.3, 498.5.

Petitioner argues additionally that the contractor failed to provide it with an opportunity to rebut the determination to deactivate Petitioner’s billing privileges.  Petitioner’s brief at 3; see 42 C.F.R. § 424.545(b).  There is nothing in the record to support this assertion.  To the contrary, Petitioner concedes that its billing agent filed an “appeal” of the deactivation decision on November 15, 2018.  That package of materials clearly could be construed as a rebuttal.  In any event, the contractor was under no obligation to accept the arguments made on Petitioner’s behalf.  As I have discussed, a decision to deactivate is not appealable.  Moreover, nothing asserted by Petitioner or on Petitioner’s behalf

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gainsays the fact that Petitioner failed timely to file an application to reactivate its billing privileges.

I construe Petitioner’s assertion that it failed to timely file an application to reactivate its billing privileges as being, in part, an equitable argument.  Petitioner essentially argues that it failed to reactivate through no fault of its own.  However, I am not authorized to hear Petitioner’s equitable argument or to grant equitable relief against CMS.  US Ultrasound, DAB No. 2302 at 8 (2010).

1. A Medicare contractor assigned an effective reactivation of billing privileges date to Petitioner of May 8, 2019, which is the date that Petitioner filed an application for reactivation of billing privileges that the contractor accepted and processed to completion.  Subsequently, the contractor allowed Petitioner to file Medicare reimbursement claims effective April 9, 2019.  That is a discretionary decision by the contractor that I do not address in this decision.  My decision does not rescind the contractor’s action to allow Petitioner to file reimbursement claims for services beginning on April 9, 2019.
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2. CMS objected to my receiving Petitioner’s exhibits 1-3 on the ground that Petitioner failed to submit them in connection with its request for reconsideration and also on relevance grounds.  I agree with CMS that these exhibits technically are excludable, and, under most circumstances, I would exclude them.  However, these exhibits are, in fact, evidence that refutes one of Petitioner’s arguments – that it did not receive the notice letters that a Medicare contractor sent to Petitioner.  As I discuss below, the address that Petitioner uses on its own documents is identical to that to which the contractor sent its notices.  I receive them for that reason.
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