Bhupinder R. Gupta, MD, DAB CR6104 (2022)

DECISION

The billing gap in Medicare enrollment and billing privileges for Bhupinder R. Gupta, MD (Petitioner) is June 11, 2018, through June 25, 2019.  Therefore, I affirm the reconsidered determination that the effective date of Petitioner’s and his group practice’s Medicare enrollment and billing privileges is July 26, 2019, with authorized retrospective billing privileges beginning on June 25, 2019.

I.  Background and Procedural History

First Coast Service Options, Inc., a Medicare administrative contractor (MAC), notified Petitioner by letter dated September 11, 2017 that he needed to revalidate his Medicare enrollment record.  A second letter dated September 11, 2017 was also issued to Petitioner’s group practice and requested revalidation of the group practice’s Medicare enrollment record.  Both letters informed the Petitioner and his group practice that the records needed to be revalidated by November 30, 2017.  Centers for Medicare & Medicaid Services (CMS) Exhibits (Exs.) 1, 2.

On January 9, 2018, the MAC notified both Petitioner that it received a revalidated Medicare enrollment application and informed him that the application could be rejected

Page 2

if additional information was not provided within 90 calendar days.  CMS Ex. 3.  Nothing further was filed on behalf of Petitioner.

Subsequently on June 11, 2018, the MAC rejected the application and deactivated Petitioner’s Medicare enrollment and billing privileges.  CMS Ex. 4.  The following year on July 26, 2019, the MAC received a CMS-855A reactivation application for Petitioner.  CMS Ex. 5 at 13, 22.  The MAC informed Petitioner that it received the application, but that the application may be rejected if additional information was not provided within 30 calendar days.  CMS Ex. 6.

Following the process and approval of Petitioner’s application, the MAC issued an initial determination letter on October 25, 2019 and informed Petitioner that the effective date would remain the same.  CMS Ex. 7.  The MAC also informed Petitioner that the gap in billing privileges would remain because of Petitioner’s failure to timely respond to a development request related to the revalidation application.  Id.; CMS Ex. 4.  The MAC explained that Petitioner could not be reimbursed for services provided to Medicare beneficiaries during this time period because Petitioner was not in compliance with Medicare requirements.  CMS Ex. 7.

Petitioner requested a reconsidered determination.  CMS Ex. 8.  On November 12, 2019, the MAC issued a reconsidered determination and upheld the effective date of Petitioner’s Medicare billing privileges as July 26, 2019, with retrospective billing privileges authorized on June 25, 2019.  CMS Ex. 9.  The reconsidered determination also affirmed the gap in billing privileges from June 11, 2018, the date Petitioner was deactivated from the Medicare program, through June 25, 2019.  On December 20, 2020, Petitioner requested a hearing before an administrative law judge (ALJ).  The case was assigned to an ALJ on December 30, 2020 and an Acknowledgment and Pre-hearing Order (Pre-hearing Order) was issued.

On January 27, 2020 CMS filed a motion for summary judgment, pre-hearing brief (CMS Br.) and nine exhibits (CMS Exs. 1-9).  On July 21, 2020, Petitioner filed nine pdf and word documents as part of the pre-hearing exchange, some of which are the same documents filed by CMS.  DAB E-file Dkt. C-20-193, Doc. Nos. 14-22, 25; CMS Exs. 7, 9.  As document number 15, Petitioner submits the same letter submitted for the Request for Hearing.  I treat Petitioner’s letter as Petitioner’s pre-hearing brief (P. Br.) and the eight documents as Petitioner’s exhibits 1-8 (P. Exs. 1-8).  On August 5, 2020, CMS objected to P. Exs. 2, 4, and 5 and argued the submissions should be excluded as irrelevant and were filed by Petitioner without good cause.  Over CMS’s objections, I admit P. Exs. 2, 4 and 5 as evidence.  Without objection, I admit all other evidence by both CMS and Petitioner into the record.

As stated in the Pre-Hearing Order issued on December 30, 2019, “[a]n in-person hearing to cross-examine witnesses will be necessary only if a party files admissible, written

Page 3

direct testimony, and the opposing party requests cross-examination.”  Pre‑Hearing Order ¶ 11.  As neither party proposed any witnesses, an in-person hearing is not required, and I issue this decision based on the written record, without regard to whether the standards for summary judgment are met.  Pre‑Hearing Order ¶¶ 8-12; CRDP § 19(d).  I therefore deny CMS’s motion for summary judgment as moot.

II. Discussion

A.  Applicable Law

Section 1831 of the Social Security Act (the Act) (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B.  Payment under the program for services rendered to Medicare-eligible beneficiaries may only be made to eligible providers of services and suppliers.¹  Act §§ 1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395u(h)(1)).  The Part B program is administered through the MACs.  Act § 1842(a) (42 U.S.C. § 1395u(a)).  The Act requires the Secretary of Health and Human Services (Secretary) to issue regulations that establish a process for the enrollment of providers and suppliers, including the right to a hearing and judicial review of certain enrollment determinations.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).

Pursuant to 42 C.F.R. § 424.505, a provider or supplier must be enrolled in the Medicare program and be issued a billing number to have billing privileges and to be eligible to receive payment for services rendered to a Medicare-eligible beneficiary.  “Enrollment” is the process that CMS uses to (1) identify the prospective supplier; (2) validate the supplier’s eligibility to provide terms or services to Medicare beneficiaries; (3) identify and confirm a supplier’s owners and “practice location(s);” and (4) grant the supplier “Medicare billing privileges.”  42 C.F.R. § 424.502.

CMS may deactivate the Medicare billing privileges of a provider or supplier for not furnishing complete and accurate information and all supporting documentation within 90 calendar days of receipt of notification from CMS to submit an enrollment application

Page 4

and supporting documentation, or resubmit and certify to the accuracy of its enrollment information.  42 C.F.R. § 424.540(a).  In order for a deactivated provider or supplier to reactivate its Medicare billing privileges, the provider or supplier must recertify that its enrollment information currently on file with Medicare is correct, furnish any missing information as appropriate, and be in compliance with all applicable enrollment requirements in this title.  42 C.F.R. § 424.540(b).

The effective date of Medicare enrollment, including reactivation after being deactivated from the Medicare program, of a physician, nonphysician practitioner, and physician and nonphysician practitioner organizations, such as Petitioner, is governed by 42 C.F.R. § 424.520(d).  See Urology Group of NJ, LLC, DAB No. 2860 at 9 (2018).  The effective date of enrollment may only be the later of two dates:  the date of receipt of the application for enrollment that was subsequently approved by a MAC charged with reviewing the application on behalf of CMS; or the date when the physician or nonphysician practitioner first began providing services at a new practice location.  42 C.F.R. § 424.520(d).

An enrolled physician, nonphysician practitioner, or a physician or nonphysician group, may retrospectively bill Medicare for services up to 30 days prior to the effective date of enrollment, when the provider or supplier has met all program requirements (including State licensure requirements), and services were provided at the enrolled practice location 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)(i).

The Secretary has issued regulations that establish the right to a hearing and judicial review of certain enrollment determinations.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).  Pursuant to section 1866(h)(1) and (j)(8), a provider or supplier whose enrollment application or renewal application is denied is entitled to an administrative hearing and judicial review.  Pursuant to 42 C.F.R. § 498.3(b)(15), a provider or supplier’s effective date of enrollment is an initial determination that is subject to administrative review by an ALJ after a reconsidered determination.  42 C.F.R. § 498.5(l)(1)-(2).  Neither the rejection of an enrollment application nor the deactivation of billing privileges, however, is an “initial determination” subject to review under 42 C.F.R. Part 498.  42 C.F.R. § 498.3(b); see also Rosemary Sachs ARNP, DAB No. 2978 at 3 (2019).

Appeal and review rights are specified by 42 C.F.R. § 498.5.

Page 5

B.  Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2); see also Act § 1866(j)(8) (42 U.S.C. § 1395cc(j)(8)).

C.  Issue

Whether Petitioner’s effective date for Medicare enrollment is July 26, 2019, with authorized retrospective billing privileges beginning on June 25, 2019.

D.  Findings of Fact, Conclusions of Law and Analysis

My conclusions of law are set forth in bold followed by my findings of fact and analysis.

1.  Pursuant to 42 C.F.R. § 424.520(d), Petitioner’s effective date of Medicare enrollment is July 26, 2019, the date of receipt by the MAC of a Medicare enrollment application (CMS-855A) from Petitioner that the MAC processed to approval.

2.  Pursuant to 42 C.F.R. § 424.521(a)(1), Petitioner is authorized to bill Medicare for services provided to Medicare-eligible beneficiaries up to 30 days prior to the effective date of enrollment, that is, beginning on June 25, 2019.

Petitioner is not requesting an earlier effective date but wants the entire gap in billing privileges to be removed and to be allowed reimbursement for his services provided to Medicare patients between June 11, 2018 and June 25, 2019.  Petitioner explains that he “overlooked” the revalidation application “due to changes in office staffing” and did not know the billing privileges had become deactivated.  P. Br.  Petitioner argues that his practice is very busy because he is the only trauma physician on-call to all local hospitals within a 50-60 mile radius.  P. Br.  Petitioner serves both uninsured and Medicare patients and states that his patients depend on his services because there are a limited number of Hand/Plastic reconstructive surgeons in the area.  DAB E-file Dkt. C-20-193, Doc. No. 25.  Lastly, Petitioner argues that the financial burden of $826,338.00 is too much for his small and busy practice to absorb.  Id.

The regulations controlling the effective date of enrollment of a physicians, nonphysician practitioners, and physician or nonphysician practice groups are clear and controlling.  42 C.F.R. § 424.520(d).

Petitioner’s argument that he didn’t realize his Medicare enrollment and billing privileges had been deactivated is unavailing.  Medicare providers and suppliers, as participants in the program, have a duty to familiarize themselves with Medicare requirements.  Brenda

Page 6

Lee Jackson, DAB No. 2903 at 11 (2018) (and cases cited therein).  Petitioner does not allege that the MAC did not have a legal basis to assign July 26, 2019 as the effective date of Petitioner’s and his group practice’s Medicare enrollment.  Additionally, Petitioner does not dispute that the only application from Petitioner that was processed to approval was the reactivated application received by the MAC on July 26, 2019.

I have no authority to assign an earlier effective date of a provider or supplier’s Medicare enrollment and billing privileges.  CMS has published guidance to its contractors concerning what effective participation date to assign to a supplier or provider that seeks to reactivate its application.  Medicare Program Integrity Manual (MPIM), CMS Pub. 100-08, Ch. 15 § 15.27.1.2.  This guidance is consistent with the regulatory requirements governing the effective date of participation of newly participating suppliers and providers under 42 C.F.R. § 424.520(d).  Willie Goffney Jr., M.D., DAB No. 2763 (2017).  Therefore, the earliest possible date on which Petitioner’s billing privileges may be reactivated is July 26, 2019, the date on which the MAC received Petitioner’s reactivation application that was processed to approval.  The MAC then authorized retrospective billing privileges to begin 30 days prior on June 25, 2019, based on the regulation at 42 C.F.R. § 424.521(a).

Accordingly, Petitioner’s request that the gap in billing privileges be removed cannot be granted.

While I can understand that the $826,338.00 may be too much for Petitioner to financially absorb, I construe this argument as a request for equitable relief.  I have no authority to grant Petitioner equitable relief in the form of an earlier effective date of enrollment, even if I were inclined to do so.  US Ultrasound, DAB No. 2302 at 8 (2010).  I am bound to follow the Act and regulations and I have no authority to declare statutes or regulations invalid or ultra vires.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009).

III.  Conclusion

For the foregoing reasons, the gap in Medicare enrollment and billing privileges for Petitioner remains, and the effective date of enrollment is July 26, 2019, with authorized retrospective billing privileges beginning June 25, 2019.

Endnotes