Michael Loeffler, M.D., DAB CR5073 (2018)

Department of Health and Human Services
Civil Remedies Division

Docket No. C-18-510
Decision No. CR5073


I grant summary judgment sustaining the determination of a Medicare contractor to reactivate the Medicare billing privileges of Petitioner, Michael Loeffler, M.D., effective September 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 13 proposed exhibits that are identified as CMS Ex. 1-CMS Ex. 13.  Petitioner opposed the motion filing a letter in which he explained his contention that the contractor erred in deactivating his billing privileges.  He filed supporting documents that he identified as P. Ex. 4-P. Ex. 7.

There are no disputed issues of material fact in this case.  Consequently, I enter summary judgment in favor of CMS.  It is unnecessary that I admit into evidence the parties’ exhibits inasmuch as I grant CMS’s motion for summary judgment.  I cite to some of the parties’ exhibits but only to illustrate facts that are not in dispute.

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II. Issue, Findings of Fact and Conclusions of Law

  1. Issue

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

  1. 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.

42 C.F.R. § 424.540.  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 guidance is consistent with regulatory requirements governing the effective date of

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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 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 April 10, 2017, a Medicare contractor sent a letter to Petitioner asking him to revalidate his Medicare enrollment in order to maintain his Medicare billing privileges.  CMS Ex. 1 at 1.  On May 12, 2017, Petitioner filed a Medicare enrollment application with the contractor.  CMS Ex. 2.  On June 23, 2017, the contractor sent a request to Petitioner in which it asked him to complete certain aspects of the application that the contractor had determined to be incomplete.  CMS Ex. 3 at 1-2.

By letter dated August 8, 2017, the contractor concluded that Petitioner did not respond appropriately to its requests for additional information and it deactivated Petitioner’s Medicare billing privileges.  CMS Ex. 4 at 1.  On that date, the contractor informed Petitioner that he could reactivate his Medicare billing privileges by submitting a new Medicare enrollment application.  Id.

Petitioner initially failed to file a new Medicare enrollment application.  He attempted to correct the problems previously identified by the contractor by faxing revisions to his previously submitted application.  His office sent the revisions to the contractor on August 9, 2017.  CMS Ex. 5 at 1.

Evidently, the contractor advised Petitioner that this attempt to cure the problems with his previous application was unacceptable.  On September 22, 2017, Petitioner filed a new

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enrollment application with the contractor.  CMS Ex. 6.  The contractor eventually accepted this application and processed it, ultimately assigning Petitioner a reactivation date for his Medicare billing privileges of September 22, 2017.

September 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 September 22, 2017.

Petitioner protests that on August 9, 2017, he faxed to the contractor the requisite information that cured any deficiencies in his May 12, 2017 application for reenrollment.  He argues that the contractor should have accepted this application and reactivated his billing privileges based on it.

However, Petitioner has made no showing that the materials that he faxed on August 9, 2017, addressed all of the deficiencies that the contractor identified with Petitioner’s May 12, 2017 application.  Indeed, Petitioner did not address any of the substantive deficiencies identified by the contractor.  Leaving aside the question of whether Petitioner faxed the correct form of application on August 9, 2017, there is nothing to suggest that the contents of the material that he submitted on August 9, 2017, satisfied the contractor’s information requests.  Consequently, there is no basis for me to conclude that Petitioner filed an application that was complete and acceptable on any date prior to September 22, 2017.

Moreover, the regulation governing applications for Medicare enrollment does not grant me the authority to look behind the contractor’s determinations and to decide whether the contractor should have accepted something other than that which the contractor determined was acceptable.  The regulation establishes the effective date of Medicare enrollment as the date when the application is approved by the contractor.  42 C.F.R. § 424.520(d).  It does not give me the authority to find that the contractor should have approved some document other than that which the contractor determined to accept.