Bryan L. Folkers, D.O., DAB CR5057 (2018)

Department of Health and Human Services
Civil Remedies Division

Docket No. C-18-270
Decision No. CR5057


I modify the determination of a Medicare contractor to reactivate the Medicare billing privileges of Petitioner, Bryan L. Folkers, D.O., which are effective September 21, 2016.

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 10 proposed exhibits that are identified as CMS Ex. 1-CMS Ex. 10.  Petitioner opposed the motion and filed a letter in which he explained his contention that the contractor erred in deactivating his billing privileges.

It is unnecessary that I find that the criteria for summary judgment are met.  Neither party offered witness’ testimony.  Acknowledgment and Pre-Hearing Order, §§ 8, 10.  Consequently, an in-person hearing would serve no purpose.  I receive CMS Ex. 1-CMS Ex. 10 into the record.

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II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issue is whether September 21, 2016 is the earliest date that Petitioner’s Medicare billing privileges may be reactivated.1

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 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

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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 physicians . . . 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.

42 C.F.R. § 424.520(d).  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 March 16, 2016, a Medicare contractor sent a letter to Petitioner asking him to submit an updated enrollment application in order to maintain his Medicare billing privileges.  CMS Ex. 3 at 1-4. 

Petitioner did not respond to this information request.  On June 5, 2016, the contractor sent another letter to Petitioner advising him that he had not revalidated his enrollment information by the due date of May 31, 2016 stated in the first request.  CMS Ex. 4 at 1-2.  On August 8, 2016, the contractor deactivated Petitioner’s Medicare billing privileges, informing him of that action by written notice.  CMS Ex. 5 at 1-2. 

Petitioner filed an application to revalidate his billing privileges on September 21, 2016.  CMS Ex. 6 at 1-3.  The contractor initially rejected that application and opted to reactivate Petitioner’s billing privileges based on another application that Petitioner filed on November 3, 2016.  On reconsideration, the reviewing official opted to accept Petitioner’s September application and established the effective reactivation date as September 22, 2016.  CMS Ex. 1

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September 21, 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 the reconsideration official subsequently approved.2   Neither the contractor nor I may assign Petitioner a reactivation date that is retroactive to a date that is earlier than September 21, 2016.

Petitioner protests that the contractor’s notices were not sent to his current practice address but rather, to another address that is not his primary practice location.  He asserts that he never saw the contractor’s letter requesting that he revalidate his Medicare billing privileges.  Nor, according to Petitioner, did he see the follow up request from the contractor or the notice that his billing privileges were deactivated.  Thus, Petitioner contends that his Medicare billing privileges were deactivated through no fault of his own.  Petitioner concedes, however, that the address to which the contractor sent its letters, 800 S. Fillmore Street, Osceola, Iowa, is an address at which he maintains a practice location, albeit “one of the rural areas he provides his surgical skills at.”  Petitioner’s letter brief, March 7, 2018.

Petitioner’s argument is not one that I have authority to hear and decide.  42 C.F.R. §§ 498.3(b) and (d).  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. 

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.  US Ultrasound, DAB No. 2302 at 8 (2010).

  • 1. The contractor originally reactivated Petitioner’s Medicare billing privileges effective November 3, 2016. On reconsideration the reviewing official changed that date to September 22, 2016.
  • 2. The reconsideration official’s decision to establish the effective reactivation date of September 22, 2016 is incorrect in that Petitioner filed his revalidation application on September 21, 2016. The date of that application determines the effective date of the reactivation of Petitioner’s billing privileges and that is September 21 and not September 22, 2016.