Wen Cai, A.C.N.P., DAB CR5044 (2018)

Department of Health and Human Services
Civil Remedies Division

Docket No. C-18-173
Decision No. CR5044


I grant summary judgment sustaining the determination of a Medicare contractor, as affirmed upon reconsideration, to reactivate the Medicare billing privileges of Petitioner, Wen Cai, A.C.N.P., effective June 22, 2017.

I. Background

Petitioner requested a hearing in order to challenge the effective date of reactivation of his Medicare billing privileges.  The Centers for Medicare & Medicaid Services (CMS) moved for summary judgment, filing a brief and 11 proposed exhibits that are identified as CMS Ex. 1-CMS Ex. 11.  Petitioner opposed the motion and cross-moved that I remand this case to the contractor for additional review.  Petitioner filed one exhibit that is identified as P. Ex. 1 in support of his opposition and cross-motion.

It is unnecessary that I rule as to the admissibility of the parties’ exhibits inasmuch as I grant CMS’s motion for summary judgment based on undisputed material facts and

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governing regulations.  However, I cite to some of the parties’ exhibits only for the purpose of illustrating those facts that are undisputed.1

II. Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether the contractor properly established June 22, 2017, to be the effective date of reactivation of Petitioner’s Medicare billing privileges.

B. Findings of Fact and Conclusions of Law

This case is governed by a regulation, 42 C.F.R. § 424.540.  In relevant part the regulation states:

(a) Reasons for deactivation. CMS may deactivate the Medicare billing privileges of a provider or supplier for any of the following reasons: . . .

(3) The provider or supplier does not furnish complete and accurate information and all supporting documentation within 90 calendar days of receipt of notification from CMS to submit an enrollment application and supporting documentation, or resubmit and certify to the accuracy of its enrollment information.

(b) Reactivation of billing privileges.

(1) When deactivated for any reason other than nonsubmission of a claim, the provider or supplier must complete and submit a new enrollment application to reactivate its Medicare billing privileges or, when deemed appropriate, at a minimum, recertify that the enrollment information currently on file with Medicare is correct.

A contractor’s decision to deactivate a provider’s reimbursement privileges is not a determination that gives hearing rights to the affected individual or entity.  See 42 C.F.R. §§ 498.3(b) and (d).  Consequently, a provider or supplier whose Medicare billing

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privileges are deactivated may not challenge the contractor’s decision to deactivate.  I have no authority to decide that challenge.

CMS has published guidance to its contractors concerning what effective participation date to assign to a supplier or provider that seeks to reactivate its participation.  That date shall be the date when that the contractor receives a re-enrollment application that it processes to completion.  Medicare Program Integrity Manual (MPIM), §  That guidance is consistent with regulatory requirements governing the effective date of participation of newly participating suppliers and providers.  42 C.F.R. § 424.520(d); Willie Goffney Jr., M.D., DAB No. 2763 (2017).

Given that, the only question I may consider is whether the contractor (or, in this case, a reconsideration hearing officer) properly assigned an effective reactivation date to a provider or a supplier whose billing privileges are deactivated.  The propriety of the contractor’s action in determining to reactivate is governed by 42 C.F.R. § 424.520(d).  The regulation states that:

The effective date for billing privileges for . . . non-physician practitioners . . . is the later of . . . [t]he date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or . . . [t]he date that the supplier first began furnishing services at a new practice location.

The earliest possible effective reactivation date that a contractor may assign to a provider or supplier whose billing privileges are deactivated is the date that the provider or supplier files a new enrollment application with the contractor that the contractor subsequently approves.  The contractor has no authority to assign a retroactive reactivation date to a provider or a supplier whose billing privileges were deactivated on a date prior to the date when the provider or supplier submits a new enrollment application for the purpose of reactivating his or her billing privileges.  Moreover, I do not have authority to order a contractor to assign a retroactive reactivation date.

The undisputed facts of this case are that on or about August 8, 2016, a Medicare contractor sent two letters to Petitioner directing him to submit an updated enrollment application in order to maintain his Medicare billing privileges.  CMS Ex. 1 at 1-4.  The contractor sent these letters to the address that Petitioner had listed as his contact address.  Id.; CMS Ex. 11 at 8.

Petitioner did not respond to these information requests.  On November 7, 2016, the contractor sent another letter to Petitioner’s contact address advising Petitioner that he had not revalidated his enrollment information and requesting that he do so.  CMS Ex. 2.  On January 10, 2017, the contractor deactivated Petitioner’s Medicare billing privileges, informing him of that action with a notice that it again sent to Petitioner’s contact address.  CMS Ex. 3 at 1.

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Petitioner filed an application to reactivate his billing privileges on June 22, 2017.  The contractor processed that application and reactivated Petitioner’s billing privileges, establishing June 22, 2017, as the effective date of reactivation.  CMS Ex. 7 at 1-2.

June 22, 2017, is the earliest date on which Petitioner’s billing privileges may be reactivated because that is the date on which the contractor received Petitioner’s application for reactivation that it subsequently approved.  Neither the contractor nor I may assign Petitioner a reactivation date that is retroactive to a date that is earlier than June 22.

Petitioner protests that he never received any of the contractor’s information requests and that he was consequently unaware of the request that he revalidate his enrollment data.  See P. Ex. 1.  Thus, Petitioner contends that his Medicare billing privileges were deactivated through no fault of his own.  Petitioner argues also that the contractor should have used alternative means to contact him, besides the letters that it sent to him, and that it failed to do so.  He argues that I should remand this case to the contractor for a new reconsideration determination that takes into account his assertions that he never received the contractor’s information requests and that the contractor improperly failed to attempt to contact him via alternatives to its letters.

These are arguments that I have no authority to hear and decide.  Petitioner effectively appeals the contractor’s action to deactivate his billing privileges.  As I note above, a decision by a contractor to deactivate a participating provider or supplier’s billing privileges is not appealable.  Nor do I have authority to remand this case to the contractor.  A remand based on Petitioner’s assertion that he never received the contractor’s letters would be a back-door decision that the contractor erred, either by deactivating Petitioner’s billing privileges or by denying Petitioner’s reconsideration request, a decision that I lack authority to make. Moreover, the remand request does not raise a new issue that I have authority to consider pursuant to 42 C.F.R. § 498.56(d).2

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Finally, I note that there is an equitable aspect to Petitioner’s argument.  Effectively, he asserts that it is unfair that he be penalized for not responding to notices that he contends he never received.  This is also an argument that I have no authority to hear and decide inasmuch as equitable challenges to CMS’s determinations are not appealable.  U.S. Ultrasound, DAB No. 2302 at 8 (2010).

  • 1. This case involves identical arguments to those made by the parties in another case, Sarah Long, N.P., Docket No. C-18-172. The affected parties in the two cases are represented by the same counsel and, apparently, are in practice with each other. I decide each case separately. Each Petitioner has an independent right to file an appeal from my decision should he or she opt to do so.
  • 2. Petitioner argued in his reconsideration request that he hadn’t received the contractor’s letters, the same argument that he is making now. CMS Ex. 8 at 1, 3; CMS Ex. 10 at 1-2. Petitioner, therefore, has no basis for contending that this argument was not considered previously or that he has been denied due process.