Kamal Amin MD, DAB CR5160 (2018)

Department of Health and Human Services
Civil Remedies Division

Docket No. C-18-797
Decision No. CR5160


I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) sustaining the determinations of a Medicare contractor, as affirmed upon reconsideration, establishing an effective date of September 25, 2017, for reactivation of the Medicare billing privileges of Petitioner, Kamal Amin, M.D., and an effective date of November 16, 2017, for reassignment of those billing privileges to a third party, Independent Physicians of Wisconsin (IPW).1

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I. Background

CMS moved for summary judgment, filing a brief and twelve exhibits that are identified as CMS Ex. 1-CMS Ex. 12. Petitioner submitted documents received in our office on June 12, 2018, including a copy of the September 7, 2017, deactivation notice and Petitioner's request for hearing, but Petitioner did not file a reply to CMS's motion. I sent an order to show cause to Petitioner asking him to explain why I should not dismiss his hearing request on grounds of abandonment. In his reply he averred that he would rely on his hearing request to state his arguments and that he did not wish to supplement them. Based on that reply I decided to issue a decision addressing the merits of Petitioner's hearing request.

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.

II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are: whether a Medicare contractor properly determined September 25, 2017, to be the effective date of reactivation of Petitioner's billing privileges; and whether it properly determined November 16, 2017, to be the effective date of reassignment to IPW 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 April 14, 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 July 4, 2017, advising him that his revalidation application was past due. CMS Ex. 4. 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 September 7, 2017, the contractor deactivated his Medicare billing privileges effective August 31, 2017, due to Petitioner's failure to revalidate those privileges. CMS Ex. 5.

The contractor sent all of the aforesaid notices to two addresses: to Petitioner's correspondence address; and to the address of IPW, the entity to which Petitioner had reassigned his Medicare billing privileges. E.g.,CMS Ex. 1 at 1, 3; CMS Ex. 2 at 2, 5; CMS Ex. 3 at 4.

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On September 25, 2017, Petitioner filed a revalidation application with the contractor. CMS Ex. 6. In that application Petitioner asked that his Medicare billing privileges be reassigned to an entity, Wheaton Franciscan Medical Group (Wheaton). Id. at 16. The contractor accepted this application. CMS Ex. 7. It informed Petitioner that the application was approved and that his billing privileges were reactivated, effective September 25, 2017. Id. It also approved reassignment of Petitioner's billing privileges to Wheaton effective that date. Id.

On November 16, 2017, IPW sent an application to the contractor asking that Petitioner's Medicare billing privileges be reassigned to it. CMS Ex. 8. The contractor approved this application and granted an effective date of reassignment of November 16, 2017 (with billing privileges retrospectively assigned to October 17, 2017). CMS Ex. 9.

The contractor's deactivation of Petitioner's Medicare billing privileges effective August 31, 2017, and its subsequent reactivation of those privileges as of September 25, 2017, created a gap in the dates during which Petitioner could be compensated for services he provided to Medicare beneficiaries. The Medicare program would not reimburse Petitioner for services he provided during the August 31-September 25 period. In addition, the contractor's determination to approve reassignment of Petitioner's billing privileges to IPW effective November 16, 2017 (with privileges made retrospective to October 17, 2017) meant that it would not reimburse IPW for claims for services provided by Petitioner between August 31 and October 17, 2017.

Petitioner challenges the determinations to reactivate his billing privileges and to reassign his benefits to IPW effective November 16, 2017. He argues that his billing privileges and reassignment of his benefits should be made effective as of August 31, 2017, contending principally that he never received the contractor's notices concerning his need to revalidate his billing privileges at his preferred mailing address, that being IPW's address. Petitioner effectively asserts that had he received those notices he would have acted timely and that there never would have been a gap during which he and IPW could not be reimbursed for the services that he rendered. He contends additionally that any errors that he may have made in filing his applications were inadvertent and that he should not be penalized for them. Finally, he argues that during the gap period he treated patients in good faith and that he should not be denied reimbursement for those services. Petitioner's hearing request.

The deactivation and reactivation of Petitioner's billing privileges are 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:

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(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, Petitioner may not challenge the contractor's decision to deactivate his billing privileges effective September 25, 2017.

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. 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 on the issue of reactivation is whether the contractor properly assigned Petitioner an effective reactivation date of September 25, 2017, 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:

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.

The effective reactivation date of September 25, 2017, that the contractor assigned to Petitioner was the earliest possible effective date that Petitioner could have received because the contractor received Petitioner's application for reactivation on that date.

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Petitioner's argument that he did not receive notice of the need to revalidate his billing privileges is irrelevant as a matter of law because, as I have stated, the contractor's decision to deactivate those billing privileges is not appealable. Moreover, I would not accept Petitioner's unsupported claim that he did not receive the contractor's notices even if that claim were relevant. Petitioner has not offered anything other than his unsworn assertion to show that he did not receive the contractor's notices. In ruling on a motion for summary judgment I am required to consider all facts in a light most favorable to the party against which the motion is filed. But, there must be some facts in controversy in order for me to consider them. A naked assertion, unsupported by anything is not an assertion of fact that I must consider.

The effective date of a reassignment of benefits is controlled by 42 C.F.R. § 424.520(d) in the same manner as are effective dates for newly enrolled suppliers or for reactivation of suppliers' billing privileges. The earliest effective date of a reassignment of billing privileges consequently is the date that the contractor receives an application for reassignment that it accepts and processes to completion. The contractor is without authority to assign an earlier effective date for reassignment and I am without authority to order it to do so.

In this case IPW could not be the reassignee of Petitioner's Medicare billing privileges during the period of deactivation of those privileges. As a consequence of deactivation, Petitioner was required not only to apply for reactivation but also was required to request reassignment of those privileges to a third party if he desired that the privileges be reassigned. Petitioner could have requested reassignment to IPW in his September 25, 2017 reactivation application. He failed to do so, instead asking that his billing privileges be reassigned to another entity (Wheaton). IPW did not request reassignment of his billing privileges to it until November 16, 2017. The contractor's approval of reassignment of billing privileges to IPW as of that date (with retroactivity to October 17, 2017) was the earliest date that the contractor was authorized to approve.

Petitioner characterizes the deactivation of his billing privileges and the subsequent reactivation and reassignment of those billing privileges as unfair. As I have discussed, he acknowledges that he made mistakes in attempting to reactivate his billing privileges and in requesting reassignment of those privileges, but he asserts that he should not be penalized for inadvertent errors on his part which, he contends, stem mostly from his failure to receive the revalidation notices in the first place.

Petitioner's arguments are equitable and I do not have authority to hear and decide them. US Ultrasound, DAB No. 2302 at 8 (2010). I add that Petitioner is not blameless for the gap in reimbursement. As I have discussed, he has offered no facts that establish that he failed to receive the contractor's notices – notices that were mailed to addresses that

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Petitioner listed as his correspondence address and the address of the reassignee of his Medicare billing privileges. Furthermore, the effective date of approval of reassignment of billing privileges to IPW is the direct consequence of Petitioner listing another entity (Wheaton) in his application to reactivate his billing privileges.

  • 1. By operation of law Petitioner's reassigned billing privileges commence on October 17, 2017, the earliest permissible retrospective billing date. Medicare Program Integrity Manual (MPIM), Chapter 15, § 15.17(b)-(c).