Bhupendra Vora, M.D., DAB CR5195 (2018)

Department of Health and Human Services
Civil Remedies Division

Docket No. C-18-1083
Decision No. CR5195


I grant summary judgment sustaining the determination of a Medicare contractor, as affirmed upon reconsideration, to reactivate the billing privileges of Petitioner, Bhupendra Vora, M.D., effective January 18, 2018.

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. It filed a brief supporting its motion plus 13 proposed exhibits that it identified as CMS Ex. 1-CMS Ex. 13. Petitioner responded to the motion with a letter. He filed no exhibits.

There are no disputed issues of material facts in this case and I find summary judgment to be appropriate. It is unnecessary that I decide whether to receive CMS's proposed exhibits into evidence inasmuch as the facts are undisputed. I cite to some of these exhibits but only for the purpose of illustrating 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 the effective date of reactivation of Petitioner's Medicare billing privileges to be January 18, 2018.

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.

The regulation plainly tells a provider or supplier that it will be deactivated by CMS if CMS directs it to submit an enrollment application and the provider or supplier fails to do so within 90 calendar days. Additionally, it puts the onus on the deactivated provider or supplier to submit a new Medicare enrollment application if it desires to reactivate its participation.

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

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is consistent with regulatory requirements governing the effective date of participation of newly participating suppliers and providers. 42 C.F.R. § 424.520(d).

The undisputed facts are that on January 19, 2017, a Medicare contractor mailed a Medicare participation revalidation request to Petitioner. CMS Ex. 1; CMS Ex. 6. The letter told Petitioner that he must submit necessary information to revalidate his Medicare participation by no later than March 31, 2017. It advised him that failure to do so might result in deactivation of his Medicare billing privileges.

In the ensuing weeks, Petitioner sent various documentation to the contractor. The contractor found that none of Petitioner's submissions complied with the requirements for revalidation of Medicare billing privileges. On March 21, 2017, Petitioner submitted a certification statement and a voided check to the contractor. The contractor found this submission to be incomplete because Petitioner failed to submit an actual Medicare enrollment application. CMS Ex. 3. On April 11, 2017, Petitioner made a second attempt at revalidation, filing a portion of a Medicare enrollment application with the contractor. The contractor found this application to be incomplete inasmuch as it did not include all of the necessary sections of an enrollment application. CMS Ex. 6; CMS Ex. 13 at 2. On April 26, 2017, Petitioner again submitted an incomplete application to the contractor. CMS Ex. 5.

On May 19, 2017, the contractor advised Petitioner by letter that it was deactivating his Medicare billing privileges inasmuch as he had not filed a complete application for reenrollment. CMS Ex. 7.

On January 18, 2018, Petitioner filed an application with the contractor to revalidate his Medicare billing privileges. CMS Ex. 8; CMS Ex. 9. The contractor approved reactivation, effective January 18, 2018, based on this application.

I am without authority to decide whether the contractor properly deactivated Petitioner's Medicare billing privileges. A decision by the contractor to deactivate billing privileges based on failure by a supplier to provide information necessary to reenroll in Medicare is not one of those initial determinations that confer hearing rights. See 42 C.F.R. § 498.3; Willie Goffney, Jr., M.D., DAB No. 2763 (2017). Consequently, I may decide only whether the contractor acted appropriately to assign an effective reactivation of billing privileges date to Petitioner based on the reactivation application that he submitted on January 18, 2018.

The contractor acted appropriately to assign an effective reactivation date to Petitioner consistent with the regulatory requirements and with the facts of this case. The earliest date that the contractor could have assigned Petitioner an effective date of reactivation of his billing privileges, consistent with this case's undisputed facts, was January 18, 2018.

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42 C.F.R. § 424.520(d). That is so because prior to January 18, the contractor did not have a completed reactivation application that it could process.

Petitioner argues that he acted in good faith and that his failure to file a complete application for reenrollment prior to the date that the contractor deactivated his billing privileges was due to his lack of familiarity with CMS's on-line system ("Provider Enrollment, Chain and Ownership System" or "PECOS"). He argues also that during the period of deactivation of his billing privileges he treated Medicare beneficiaries in good faith and that he should be compensated for his services to these beneficiaries. Additionally, Petitioner asserts that he had no idea that his applications for reenrollment were incomplete because he did not receive notice advising him that they were incomplete.

In part, Petitioner's argument is an attempt by him to challenge the contractor's decision to deactivate his billing privileges on the ground that the contractor failed to provide him with notice that his reenrollment submissions were incomplete. I have no authority to hear this argument for the reasons that I have stated. Moreover, Petitioner's argument is belied by the facts of this case. The contractor sent a development letter to the address (142 Palisade Avenue, # 113, Jersey City, New Jersey, 07306) that Petitioner identified as his practice address. CMS Ex. 3; CMS Ex. 8 at 4.

Furthermore, the contractor is not under a burden to advise a supplier that his or her application is incomplete. The burden to assure that an application complies with requirements falls on the supplier.

I have no reason to question Petitioner's intent to comply with the reenrollment process or his good faith. However, his argument is an equitable one that I have no authority to hear or decide. US Ultrasound, DAB No. 2302 at 8 (2010). In this case the contractor acted entirely consistently with the requirements of law and I must sustain the contractor's determination.