William L. Wallace PhD, DAB CR5148 (2018)

Department of Health and Human Services
Civil Remedies Division

Docket No. C-18-884
Decision No. CR5148


I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) sustaining the determination of a Medicare contractor, as affirmed upon reconsideration, establishing an effective date of January 26, 2018, of reactivation of Medicare billing privileges for Petitioner, William L. Wallace, PhD.

I. Background

Petitioner requested a hearing in order to challenge the effective date of reactivation of his Medicare billing privileges.  CMS moved for summary judgment, filing a brief and ten exhibits that are identified as CMS Ex. 1-CMS Ex. 10. Petitioner filed a letter in opposition to CMS’s motion and did not file exhibits.

It is unnecessary that I receive CMS’s exhibits into the record inasmuch as I decide this case based on undisputed material facts. I refer to some of the exhibits in this decision but only to refer to facts that are not in dispute.

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II. Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether a Medicare contractor properly determined January 26, 2018, to be the effective date of reactivation of Petitioner’s Medicare billing privileges.

B. Findings of Fact and Conclusions of Law

These facts are undisputed. Petitioner has participated in the Medicare program. On or about June 9, 2017, a Medicare contractor sent Petitioner a notice requesting that he revalidate his Medicare billing privileges. CMS Ex. 1. The contractor sent a second notice to Petitioner on September 28, 2017, advising him that his revalidation application was past due. CMS Ex. 2. This notice effectively told Petitioner that failure to revalidate would result in deactivation of his billing privileges and would cause a gap in his ability to receive payment for services to Medicare beneficiaries. Id.

Petitioner did not file a revalidation form in response to either of these notices. On November 17, 2017, the contractor advised Petitioner that it had deactivated his Medicare billing privileges on November 7, 2017. CMS Ex. 3. 

Petitioner filed an application to revalidate his billing privileges on November 28, 2017.  CMS Ex. 4. The contractor determined that the application was incomplete or erroneous in material respects and, on December 6, 2017, it requested Petitioner to make the necessary corrections. CMS Ex. 5. Petitioner attempted to do so on December 7, 2017. However, he sent the corrections to the wrong fax number and the contractor did not receive them. CMS Ex. 9 at 24-28; Petitioner’s hearing request at 2. On January 8, 2018, the contractor rejected Petitioner’s application. CMS Ex. 6.

On January 9, 2018, after the contractor had rejected Petitioner’s application, he attempted to re-send his corrections but again faxed them to the wrong number. CMS Ex. 9 at 36-42; Petitioner’s hearing request at 3.

On January 26, 2018, Petitioner submitted a second revalidation application. CMS Ex. 7. The contractor found this application to be acceptable and processed it to completion. It assigned Petitioner a reactivation of billing privileges date of January 26, 2018, the same date as that of Petitioner’s second application. CMS Ex. 8. 

The contractor’s deactivation of Petitioner’s Medicare billing privileges effective November 7, 2017, and its subsequent reactivation of those privileges as of January 26, 2018, created a gap in the dates during which Petitioner could be compensated for services he provided to Medicare beneficiaries. The Medicare program would not

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reimburse Petitioner for services he provided during the November 7, 2017-January 26, 2018 period even if those services were otherwise compensable.

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 reject an enrollment application (or an application for revalidation of billing privileges) or to deactivate a provider’s reimbursement privileges are not determinations that give hearing rights to the affected individual or entity. See 42 C.F.R. §§ 498.3(b) and (d). Consequently, Petitioner may not challenge the contractor’s decision to deactivate his billing privileges effective November 7, 2017, nor may he challenge the contractor’s rejection of his November 28, 2017, application to reactivate his 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 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 properly assigned Petitioner an effective reactivation date of January 26, 2018, based on the application for reactivation that the contractor received on that date. The propriety of the contractor’s action is governed by 42 C.F.R. § 424.520(d). The regulation states that:

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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 effective reactivation date of January 26, 2018, that the contractor assigned to Petitioner was the earliest possible effective date that Petitioner could have received inasmuch as the contractor received Petitioner’s application for reactivation on that date.

Petitioner characterizes the deactivation of his billing privileges as a “monetary punishment” that he contends is unfair. He acknowledges that he made mistakes in attempting to reactivate his billing privileges, but he contends that the contractor also made mistakes, mistakes that he characterizes as delays, miscommunications, and lack of an effective support system. Among the mistakes that Petitioner acknowledges making is his faxing of information requested by the contractor to the wrong number. Petitioner’s hearing request at 2, 3.

Petitioner’s arguments are equitable and I do not have authority to hear and decide them. U.S. Ultrasound, DAB No. 2302 at 8 (2010). I add, furthermore, that Petitioner has not provided facts or argument that show that the contractor treated him unfairly. His failure to timely revalidate his billing privileges was his own doing. He did not respond to either of the contractor’s notices requesting him to revalidate his billing privileges. He filed a revalidation application only after the contractor deactivated those privileges for his failure to file. He then filed an application that was materially incomplete or inaccurate. By his own admission, he then faxed corrections to the wrong number.