Neelupalli Reddy, M.D., DAB CR6035 (2022)

DECISION

Petitioner, Neelupalli Reddy, M.D., (Dr. Reddy) on behalf of Neelupalli Bojji Reddy, M.D., P.A., a group practice (Reddy Group), appeals the determination establishing the effective date of its Medicare reactivation and a resulting gap in billing privileges as a Medicare supplier.  For the reasons explained below, I find that Novitas Solutions (Novitas), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), properly determined that the effective date of Petitioner’s Medicare reactivation is April 12, 2017, with a resulting gap in reimbursement from December 19, 2016 through April 11, 2017.

I.     Background and Procedural History

Petitioner has been enrolled in Medicare as both an individual supplier and the sole owner of his practice group since 1993:  Neelupalli Reddy, M.D., and Neelupalli Bojji Reddy, M.D., PA.  CMS Exhibit (Ex.) 15.  As such, he has two provider transaction access numbers (PTAN):  one for his individual enrollment (228789YFMQ) and one for

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his group practice (228788).  Id.  Dr. Reddy had reassigned his right to receive Medicare payments to the Reddy Group beginning in 1993.  Id. at 4.

On August 12, 2016, CMS sent letters to Dr. Reddy and the Reddy Group, advising of the need to revalidate Medicare enrollment by October 31, 2016.  CMS Exhibits (Exs.) 1 and 2.  The letters stated that failure to respond would result in a hold on Medicare payments and possible deactivation of Medicare enrollment.  Id.  In a letter dated December 19, 2016, the Reddy Group was notified by CMS that its Medicare billing privileges were stopped as of that date because it had not revalidated its enrollment records and no claims would be paid after that date.  CMS Ex. 4.  Dr. Reddy was again notified by Novitas on March 8, 2017 that he had not revalidated by October 31, 2016.  CMS Ex. 5.

On April 12, 2017, CMS received a CMS-855I application from Dr. Reddy to revalidate his Medicare enrollment.  CMS Ex. 6.  On April 21, 2017, CMS received a CMS-855B application to revalidate the Medicare enrollment of the Reddy Group.  CMS Ex. 7.  Additional information was requested from Petitioner on May 18, 2017, which was provided on May 23, 2017.  CMS Exs. 8 and 9.  In letters dated May 26, 2017, Dr. Reddy and the Reddy Group were notified that the revalidated Medicare enrollment applications were approved with an effective date of November 1, 1993.  CMS Exs. 10 and 11.  While the record does not contain copies of notices of such to Petitioner, a gap in Medicare coverage from December 19, 2016 through April 20, 2017 was added as a result of the delayed revalidation1 .  CMS Ex. 14 at 2.  Petitioner filed a timely request for reconsideration, asserting that the failure to return the revalidation enrollment forms was due to an unforeseen, unexpected high turn-over of office personnel and a lack of familiarity with the revalidation process.  CMS Ex. 12.  In a reconsideration determination dated September 20, 2017, Novitas concluded that Petitioner had provided evidence to support an earlier effective date of April 12, 2017, which reduced the gap in Medicare billing coverage to December 19, 2016 through April 11, 2017.  CMS Ex. 14.

Petitioner filed a timely request for hearing (RH) before an Administrative Law Judge (ALJ) on November 20, 2017.  On December 8, 2017, Judge Thomas issued an Acknowledgment and Pre-Hearing Order (Order).2   In response, CMS filed a motion for summary judgment with a brief in support of the motion (CMS Br.), accompanied by 14 proposed exhibits (CMS Exs. 1-14).  Petitioner filed a written argument, which is construed as a brief (P. Br.), and 3 proposed exhibits (P. Exs. 1-3).  Judge Thomas requested supplemental briefing on July 25, 2019.  In response, CMS filed a supplemental brief (CMS S. Br.), and proposed CMS Ex. 15.  Petitioner filed a written response to the CMS supplemental brief (P. S. Br.).  Neither party objected to the

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proposed exhibits of the other party.  In the absence of any objection, CMS Exs. 1-15 and P. Exs. 1-3 are admitted into the record.

Pursuant to the Order issued by Judge Thomas, an in-person hearing would be necessary only if a party files admissible, written direct testimony of a proposed witness, and the opposing party asks to cross-examine that witness.  Neither party has submitted written direct testimony of any proposed witness.  As a result, in the overall interest of judicial economy, an in-person hearing for the purpose of cross examination will not be held and I issue this decision based on the written record.3

II.    Issue

The issue in this case is whether Novitas, acting on behalf of CMS, properly established April 12, 2017 as the effective date for the reactivation of Petitioner’s Medicare billing privileges.

III.   Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2); see also 42 U.S.C. § 1395cc(j)(8).

IV.    Discussion

The Social Security Act (Act) authorizes the Secretary of Health and Human Services 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.  The term “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 (emphasis in original).  A supplier seeking billing privileges under the Medicare program must “submit enrollment information on the applicable enrollment application.”  42 C.F.R. § 424.510(a).  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 42 C.F.R. § 424.520(d) and may permit limited retrospective billing under 42 C.F.R. § 424.521.

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To maintain Medicare billing privileges, suppliers must revalidate their enrollment information at least every five years.  42 C.F.R. § 424.515.  When CMS notifies suppliers that it is time to revalidate, suppliers must submit the applicable enrollment application, with complete and accurate information, and supporting documentation 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).  If CMS deactivates a supplier’s billing privileges due to an untimely response to a revalidation request, the enrolled supplier may apply to CMS to reactivate its Medicare billing privileges by completing a new enrollment application or, if deemed appropriate, recertifying the enrollment information that is on file.  42 C.F.R. § 424.540(b)(1)-(2).

1.  The effective date of Petitioner’s Medicare billing privileges is April 12, 2017, the date Novitas received the revalidation enrollment application it subsequently processed to approval.4

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” 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 Medicare 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 8 (2016).  The Departmental Appeals Board has applied these effective date provisions to reactivation cases.  Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 at 6-7 (2019).

Dr. Reddy and the Reddy Group appropriately submitted separate Medicare enrollment applications to reactivate their enrollment.  Dr. Reddy submitted a CMS-855I application, which was received by Novitas on April 12, 2017.  CMS Ex. 6.  The Reddy Group submitted a CMS-855B application, which was received by Novitas on April 21, 2017.  CMS Ex. 7.  The applications were subsequently approved on May 26, 2017, with an effective date of April 21, 2017.  However, in the reconsideration determination, Novitas found that Dr. Reddy had provided evidence to support an effective date of April 12, 2017, with a resulting Medicare billing gap from December 19, 2016, the deactivation date, through April 11, 2017.  CMS Ex. 14 at 2.

Petitioner does not assert, nor does the record establish, that either revalidation enrollment application was received prior to April 12, 2017.  As a result, given that April 12, 2017 is the date that Novitas received the revalidation enrollment application that was subsequently processed to completion, I find that this is the effective date of Petitioner’s Medicare billing privileges.

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In so doing, I note that Petitioner submitted an unsigned Settlement Proposal from CMS, in which it indicated that it would apply 30 days of retrospective billing to the April 12, 2017 reactivation date in exchange for Petitioner withdrawing the request for hearing.  Petitioner stated in its supplemental brief that it “rejected the settlement” and wanted to negotiate.  P. S. Br. at 3.  These documents raise the question of whether a retrospective billing period is also at issue here.

42 C.F.R. § 424.521(a)(1) does provide that a physician may “retrospectively bill” Medicare for services that were provided up to 30 days prior to the physician’s “effective date” if certain circumstances are met.  However, Petitioner does not contend that it was denied retrospective billing privileges that it was entitled to by regulation, nor does he allege that he met all of the regulatory conditions for retrospective billing.  Moreover, there is no evidence that Novitas specifically denied retrospective billing in the reconsideration determination.  Given this, and the fact that it is not clear that denials of retrospective billing are even appealable determinations, I make no finding on whether Petitioner is entitled to a retrospective billing period.  See Richard Weinberger, M.D., and Barbara Vizy, M.D., DAB No. 2823 at 22 (2017); Shalbhadra Bafna, M.D., DAB No. 2449 at 4-5 (2012).

2.  I have no authority to review the deactivation of Petitioner’s billing privileges and cannot afford it equitable relief.

Petitioner “acknowledges that the Revalidation Application was not submitted in time frame allotted.”  P. S. Br. at 3.  Instead, he asserts that he is only seeking a “one-time exception to close the gap in deactivation of Reddy Group’s billing privileges.”  Id.  In the request for hearing, Dr. Reddy argues that his ability to respond properly and timely to the revalidation requests was hampered by the fact he was not computer savvy, had high office staff turnover, and was incorrectly advised by Novitas about the process.  RH at 2.  He notes that he continued to perform services for his Medicare patients during the period in question so that they did not suffer any interruption of critically needed neurology services, resulting in a loss of more than $76,000 in billing.  Id.

In seeking have the billing gap closed, Petitioner is either requesting that I review the validity of the deactivation action or apply some principle of equity.  With respect to the deactivation, I must make clear that I have no authority to review CMS’s deactivation of Petitioner’s Medicare billing privileges because deactivation is not an “initial determination” subject to appeal.  Deactivation decisions have a separate review process involving the submission of a rebuttal to CMS.  42 C.F.R. §§ 424.545(b), 498.3(b).  As the Board stated, “ALJs and the Board are not authorized to assess whether the deactivation of a supplier’s billing privileges was correct.”  Howard M. Sokoloff, DPM, DAB No. 2972 at 5, citing Urology Group of NJ, LLC, DAB No. 2860 at 6 (2018).

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Moreover, while I am sympathetic to Petitioner’s difficulties in providing services to Medicare beneficiaries while navigating an admittedly complex system, I do not have the authority to consider his request to change the effective date to eliminate the gap in billing caused by the deactivation on equitable grounds.  I have no authority to provide Petitioner any form of equitable relief based on principles of fairness and cannot change the effect 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 requirements.”).  Thus, the only issue in the reconsideration determination over which I have jurisdiction is the effective date of the enrollment applications reinstating Petitioner’s Medicare billing privileges.

V.     Conclusion

I affirm the effective date of Petitioner’s Medicare enrollment to be April 12, 2017.

1. Petitioner similarly noted the lack of notice of the gap of coverage in the approval notices.  CMS Ex. 12 at 4.
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2. This case was initially assigned to Judge Bill Thomas but was reassigned to me on January 27, 2022.
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3. Because a hearing is not necessary, I need not decide whether summary judgment is appropriate.
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4. My findings of fact and conclusions of law appear as numbered headings in bold italic type.
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