Alan C. DeSilva, MD, DAB CR5987 (2021)

DECISION

Petitioner, Alan C. DeSilva, MD, is a physician, practicing in Hawaii, who participates in the Medicare program.  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 March 26, 2019, with a retrospective billing date of February 24, 2019, resulting in a coverage lapse from October 15, 2018, through February 23, 2019.  Petitioner now challenges that effective date and asks that the lapse in coverage be eliminated.

Because Petitioner DeSilva filed his subsequently-approved enrollment application on March 26, 2019, I find that March 26 is the earliest possible effective date for his 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), aff’d sub nom. Goffney v. Becerra, 995 F.3d 737 (9th Cir. 2021).

Background

In a notice dated June 5, 2019, the Medicare contractor, Noridian Healthcare Solutions, advised Petitioner that it approved his revalidated Medicare enrollment application, with

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a gap in billing privileges from October 15, 2018, through February 23, 2019.  CMS Ex. 11.  Petitioner requested reconsideration.  CMS Ex. 12.  In a reconsidered determination, dated October 3, 2019, the contractor affirmed (without specifically mentioning) the effective date.  CMS Ex. 1.  Petitioner appealed. 

CMS moves for summary judgment.  However, because neither party proposes any witnesses, an in-person hearing would serve no purpose.  See Acknowledgment and Pre-hearing Order at 4, 6 (¶¶ 4(c)(iv), 10) (December 6, 2019).  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 12 exhibits (CMS Exs. 1-12).  Petitioner submits a letter and 14 exhibits (P. Exs. 1-14), one of which (P. Ex. 1) includes his arguments.  In the absence of any objections, I admit into evidence CMS Exs. 1-12 and P. Exs. 1-14.  See Acknowledgment and Pre-hearing Order at 5 (¶ 7).

Discussion

Petitioner filed his subsequently-approved enrollment application on March 26, 2019, and his reactivated Medicare enrollment can be no earlier than that date.  42 C.F.R. § 424.520(d).1

Enrollment.  Petitioner DeSilva 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 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 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 physician, the effective date for billing privileges “is the later of the date of filing” a subsequently-

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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).

If a physician meets all program requirements, CMS may allow him to bill retrospectively for up to 30 days prior to the effective date “if circumstances precluded enrollment in advance of providing services to Medicare beneficiaries.”  42 C.F.R. § 424.521(a)(1).

Revalidation and Deactivation.  To maintain his billing privileges, a supplier must, at least every five years, resubmit and recertify the accuracy of his 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 his 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 his 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.  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 May 30, 2018, the contractor directed Petitioner to revalidate his Medicare enrollment no later than August 31, 2018, updating or confirming the information in his record.  The letter warned that, if Petitioner failed to respond to the notice, his Medicare enrollment could be deactivated; the letter explained that, during the period of deactivation, Medicare would not pay for the services rendered.  CMS Ex. 2. 

Responding to the notice, Petitioner submitted an enrollment application (Form CMS-855I), which the contractor apparently received on August 13, 2018.3   CMS Ex. 3; CMS Br. at 4.  The contractor determined that the application was insufficient and, by letter dated September 14, 2018, sent Petitioner a long list of requested revisions and requests for additional information.  CMS Exs. 4.  Citing 42 C.F.R. § 424.525, the September 14 letter warned that the contractor could reject the application if Petitioner did not furnish the complete information within 30 calendar days of the letter.  CMS Ex. 4.

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In a letter dated October 15, 2018, the contractor advised Petitioner that his Medicare billing privileges were stopped, effective October 15, 2018, because he had not revalidated his enrollment record or didn’t respond to requests for more information.  CMS Ex. 5.

On October 18, 2018, Petitioner submitted another enrollment application (Form CMS-855I).  CMS Ex. 6.  In a letter dated December 14, 2018, the contractor again asked for revisions and additional documentation, warning that it could reject the application if complete information were not submitted within 30 days.  CMS Ex. 7.  Although Petitioner responded, the name on the IRS Taxpayer Identification Number he submitted differed from the supplier’s legal business name recorded on his CMS forms and on his voided check.  Compare CMS Ex. 8 at 5 with CMS Ex. 8 at 41, 43. 

By letter dated March 22, 2019, the contractor rejected Petitioner’s October 18 enrollment application.  CMS Ex. 9.

Petitioner complains that, until March 22, 2019, he did not understand why his earlier applications had been rejected and that the name discrepancy was the fault of the IRS, which erroneously changed his corporate name on its document.  CMS Ex. 12; P. Ex. 1.  However, notwithstanding the merits of his arguments, I have no authority to review rejected applications.  Wishon Radiological Med. Grp., Inc., DAB No. 2941 at 6-7 (2019); James Shepard, M.D., DAB No. 2793 at 8 (2017).

On March 26, 2019, Petitioner submitted, via PECOS, a third application (Form CMS-855I), which the contractor subsequently approved.  CMS Exs. 10, 11.  Thus, pursuant to section 424.520(d), the date Petitioner filed his subsequently-approved enrollment application – March 26, 2019 – is the correct effective date of enrollment.  Sokoloff, DAB No. 2972 at 6-7; Urology Grp., DAB No. 2860 at 7-9; Goffney, DAB 2763 at 7.  I have no authority to grant Petitioner an earlier effective date based on any equitable or policy arguments.  Sokoloff, DAB No. 2972 at 9.

Conclusion

Because Petitioner DeSilva filed his subsequently-approved reenrollment application on March 26, 2019, CMS properly granted his Medicare reenrollment effective that date.  CMS also had the authority to allow him to bill up to 30 days prior to that effective date.

1.  I make this one finding of fact/conclusion of law.
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2. CMS’s electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).
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3. The date of receipt is not apparent on the face of the document.
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