High Bridge Fire Department Emergency Squad, Inc., DAB CR5062 (2018)

Department of Health and Human Services
Civil Remedies Division

Docket No. C-18-228
Decision No. CR5062


I grant summary judgment sustaining the determination of a Medicare contractor, as affirmed upon reconsideration, to reactivate the Medicare billing privileges of Petitioner, High Bridge Fire Department Emergency Squad, Inc., effective March 6, 2017.

I. Background

Petitioner requested a hearing in order to challenge the effective date of reactivation of its 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 Exhibit (Ex.) 1-CMS Ex. 11.  Petitioner did not file an opposing brief, but filed a letter in response to CMS’s motion.  It filed two unidentified exhibits.  I identify these exhibits as follows:  P. Ex. 1 consists of documentation of services that Petitioner provided; P. Ex. 2 is a list of individuals for whom Petitioner provided services with information pertaining to the fees charged by Petitioner for those services.

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

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II. Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether the contractor properly established March 6, 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 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 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).

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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 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 April 13, 2016, a Medicare contractor sent a revalidation request to Petitioner requesting that it submit updated enrollment information.  CMS Ex. 1.  The contractor advised Petitioner that it would risk deactivation of its billing privileges if it failed to update its enrollment information by June 30, 2016.  Id.

Petitioner filed an enrollment application with the contractor on June 20, 2016.  CMS Ex. 2.  The contractor found the application to be lacking in certain respects and on August 1, 2016, it sent a letter to Petitioner asking it to supplement and correct its application within 30 days.  CMS Ex. 3.  In that letter, the contractor advised Petitioner that its application might be rejected if it failed to provide the requested supplemental information.  Id.  On September 23, 2016, a representative of the contractor spoke with a contact person for Petitioner and again advised her that the application was incomplete.  CMS Ex. 7.  There was an additional telephone conversation between a representative for the contractor and a contact person for Petitioner on October 11, 2016, in which the contractor’s representative advised Petitioner’s contact person that the contractor needed updated application information immediately.  Id. at 2.  In that conversation, the contractor’s representative stated that Petitioner’s billing privileges would be deactivated if Petitioner failed to comply with the contractor’s request.  Id.

On October 13, 2016, the contractor deactivated Petitioner’s billing privileges.  CMS Ex. 8.  On January 31, 2017, a representative of Petitioner called the contractor and averred

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that Petitioner had submitted an application for reactivation on December 27, 2016.  The contractor advised Petitioner that it hadn’t received this application.  CMS Ex. 7.

The contractor received another application from Petitioner on March 6, 2017.  CMS Ex. 9.  The contractor processed this application and established March 6, 2017, as the effective date for reactivation of Petitioner’s Medicare billing privileges.  CMS Ex. 10.

March 6, 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 March 6.

Petitioner does not dispute the facts as I have recited them.  Indeed, in its reconsideration request, Petitioner acknowledged that its billing privileges were deactivated due to its failure to meet the contractor’s deadlines for supplying relevant information.  CMS Ex. 11 at 4.  Petitioner’s argument is equitable.  It asserts that it will suffer severe financial hardship – hardship that affects its ability to continue in operation – if it does not receive reimbursement for those services that it provided between October 13, 2016 and March 5, 2017.

This equitable argument is an argument that I have no authority to hear and decide.  Equitable challenges to CMS’s determinations are not appealable.  Goffney, DAB No. 2763 at 8-9; U.S. Ultrasound, DAB No. 2302 at 8 (2010).