Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Heather J. Moreno, M.D.
Centers for Medicare & Medicaid Services.
Docket No. C-17-826
Decision No. CR5152
Noridian Healthcare Solutions, Inc. (Noridian), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), reactivated the Medicare billing privileges of Heather J. Moreno, M.D. (Petitioner or Dr. Moreno) effective November 15, 2016. Petitioner requested a hearing before an administrative law judge to dispute this effective date. As explained herein, Noridian correctly determined that Petitioner's reactivated billing privileges became effective November 15, 2016. I therefore affirm the effective date determination.
On May 12, 2016, Noridian notified Petitioner by letters sent to her business and home addresses that she was required to revalidate her enrollment record by July 31, 2016. CMS Ex. 1; CMS Ex. 2. Noridian warned Petitioner that "[f]ailure to respond to this notice will result in a hold on your payments, and possible deactivation of your Medicare enrollment." CMS Ex. 1 at 1; CMS Ex. 2 at 1.
On August 25, 2016, Noridian mailed another letter to Petitioner, again sent to her business and home addresses, advising Petitioner that her revalidation was past due. CMS Ex. 3 at 1; CMS Ex. 4 at 1. On October 20, 2016, Noridian issued a letter to Petitioner notifying her that it had deactivated her Medicare billing privileges as of October 5, 2016, because she did not revalidate her enrollment record. CMS Ex. 5.
On November 15, 2016, Noridian received a Form CMS-855R to reactivate Petitioner's Medicare billing privileges. CMS Ex. 6; CMS Ex. 9 at 2. Noridian approved this application and reactivated Petitioner's billing privileges effective November 3, 2016. CMS Ex. 7;1 CMS Ex. 9 at 2.
Petitioner requested reconsideration of the determination that her Medicare billing privileges were reactivated effective November 3, 2016. CMS Ex. 8. In a reconsidered determination, dated March 9, 2017, Noridian modified the date of reactivation of Petitioner's billing privileges from November 3, 2016 to November 15, 2016. CMS Ex. 9.
Petitioner timely requested a hearing.2 Administrative Law Judge Scott Anderson was designated to hear and decide this case; he issued an Acknowledgment and Pre-Hearing Order on July 10, 2017, (Pre-Hearing Order) that required each party to file a pre-hearing exchange consisting of a brief and any supporting documents. Pre-Hearing Order ¶ 4. CMS timely filed its brief (CMS Br.), which incorporated a motion for summary judgement, and nine proposed exhibits (CMS Exs. 1-9). Petitioner filed a brief (P. Br.) and offered three exhibits (P. Exs. 1-3). On August 25, 2017, this matter was transferred to me after Judge Anderson became unavailable due to his transfer out of this department.
II. Decision on the Record and Admission of Exhibits
Neither party objected to the exhibits offered by the other. Therefore, in the absence of objection, I admit CMS Exs. 1-9 and P. Exs. 1-3. Neither party offered written direct testimony of any witness as part of its pre-hearing exchange, meaning an in-person hearing is not necessary in this matter. Pre-Hearing Order ¶ 10. Therefore, I will decide this case on the record, based on the parties' written submissions and arguments. Civ. Remedies Div. Pro. 19(d). CMS' motion for summary judgment is denied as moot.
The issue in this case is whether Noridian, acting on behalf of CMS, properly established November 15, 2016, as the effective date of reactivation of Petitioner's Medicare enrollment and billing privileges.
I have jurisdiction to decide this case. 42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2); see also Social Security Act (Act) § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).
A. Applicable Legal Authority
The Social Security Act authorizes the Secretary of Health and Human Services to promulgate regulations governing the enrollment process for providers and suppliers. Act §§ 1102, 1866(j) (42 U.S.C. §§ 1302, 1395cc(j)). A "supplier" like Petitioner is "a physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services" under the Medicare provisions of the Act. Act § 1861(d) (42 U.S.C. § 1395x(d)); see also Act § 1861(u) (42 U.S.C. § 1395x(u)).
A supplier must enroll in the Medicare program to receive payment for covered Medicare items or services. 42 C.F.R. § 424.505. The regulations define "Enroll/Enrollment" as "the process that Medicare uses to establish eligibility to submit claims for Medicare-covered items and services." 42 C.F.R. § 424.502. A supplier seeking billing privileges under the Medicare program must "submit enrollment information on the applicable enrollment application. Once the provider or supplier successfully completes the enrollment process ... CMS enrolls the provider or supplier into the Medicare program." 42 C.F.R. § 424.510(a). CMS then establishes an effective date for billing privileges under the requirements stated in 42 C.F.R. § 424.520(d) and may permit limited retrospective billing under 42 C.F.R. § 424.521.
To maintain Medicare billing privileges, suppliers must revalidate their enrollment information at least every five years. 42 C.F.R. § 424.515. However, CMS reserves the right to perform revalidations at any time. 42 C.F.R. § 424.515(d), (e). When CMS notifies suppliers that it is time to revalidate, the suppliers must submit the appropriate enrollment application, accurate information, and supporting documentation within 60 calendar days of CMS' notification. 42 C.F.R. § 424.515(a)(2). CMS can deactivate the Medicare billing privileges of an enrolled provider or supplier if the enrollee fails to comply with revalidation requirements. 42 C.F.R. § 424.540(a)(3). When CMS deactivates suppliers' Medicare billing privileges, "[n]o payment may be made for otherwise Medicare covered items or services furnished to a Medicare beneficiary."
42 C.F.R. § 424.555(b). If CMS deactivates a supplier's billing privileges due to an untimely response to a revalidation request, the enrolled supplier may apply for CMS to reactivate its Medicare billing privileges by completing a new enrollment application or, if deemed appropriate, recertifying its enrollment information that is on file. 42 C.F.R. § 424.540(b)(1).
B. Findings of Fact and Conclusions of Law3
1. On November 15, 2016, Noridian received Dr. Moreno's application to reactivate her Medicare billing privileges and subsequently processed that application to approval.
2. The appropriate effective date of reactivation for Dr. Moreno's Medicare billing privileges November 15, 2016.
The effective date for Medicare billing privileges for physicians, non-physician practitioners, and physician or non-physician practitioner organizations is the later of the "date of filing" or the date the supplier first began furnishing services at a new practice location. 42 C.F.R. § 424.520(d). The "date of filing" is the date that the Medicare contractor "receives" a signed enrollment application that the Medicare contractor is able to process to approval. 73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008); Donald Dolce, M.D., DAB No. 2685 at 8 (2016).
As Petitioner concedes, Noridian received her application to reactivate her Medicare enrollment on November 15, 2016. CMS Ex. 6; CMS Ex. 7; CMS Ex. 9 at 2; P. Br. Noridian subsequently approved that application. CMS Ex. 9. The plain language of the governing regulations requires me to find the effective date of reactivation of Dr. Moreno's Medicare enrollment to be November 15, 2016. 42 C.F.R. § 424.520(d).
3. I have no authority to review the deactivation of Dr. Moreno's Medicare billing privileges on October 5, 2016.
The substance of Petitioner's brief is devoted to her argument that Noridian should not have deactivated her Medicare enrollment because she did not receive the revalidation notice and past due notice letters from Noridian. Petitioner specifies that the business address to which Noridian issued her notices was incorrect, and that she did not receive the notices Noridian sent to her home address. P. Br.
I am sympathetic to Petitioner's claims, which if true, would have made it nearly impossible for her to file her application at an earlier date. Unfortunately, I have no jurisdiction to consider whether Noridian acted properly in deactivating Petitioner's
Medicare enrollment, and cannot establish an earlier effective date for reactivation on that basis. This is because deactivation is not an "initial determination" subject to administrative law judge review (deactivation decisions have a separate review process). See 42 C.F.R. §§ 424.545(b), 498.3(b); see also Willie Goffney, Jr., M.D., DAB No. 2763 at 4-5 (2017). Similarly, the regulations preclude my review of a contractor's decision to reject an application. 42 C.F.R. § 424.525(d). My jurisdiction in this case is limited to reviewing the effective date of the approval of Petitioner's reactivation enrollment application. 42 C.F.R. § 493.3(b)(15).
For the reasons explained above, I affirm CMS' determination that November 15, 2016 is the effective date of Dr. Moreno's Medicare enrollment and billing privileges.
Bill Thomas Administrative Law Judge
- 1. CMS Ex. 7 is an email from Noridian notifying Petitioner that it had finalized processing her Medicare enrollment application. CMS did not provide the actual notification letter, which presumably approved Petitioner's application and established November 3, 2016 as her effective date of reactivation.
- 2. Petitioner sent her request for hearing to the Office of Medicare Hearing and Appeals (OMHA) rather than to the Departmental Appeals Board (DAB). OMHA transmitted her hearing request to the DAB after the 60-day appeal period had lapsed. However, CMS has not moved to dismiss her request as untimely, and I therefore deem any objection to the timeliness of the hearing request to be waived.
- 3. My findings of fact and conclusions of law appear as numbered headings in bold italic type.