Glaucoma Consultants of St. Louis LLC, DAB CR5260 (2019)

DECISION

I sustain the determination of a Medicare contractor, as affirmed on reconsideration, to reactivate the Medicare enrollment of Petitioner, Glaucoma Consultants of St. Louis, LLC, effective June 18, 2018.

I. Background

CMS moved for summary judgment. Petitioner opposed CMS's motion and filed a brief in response. CMS offered exhibits, identified as CMS Ex. 1-CMS Ex. 14, in support of its motion. Petitioner also filed exhibits, identified as P. Ex. 1-P. Ex. 3.

It is unnecessary that I decide whether the criteria for summary judgment are met because neither party relies on testimony. Consequently, an in-person hearing would serve no purpose. I decide this case based on the parties' submissions, which I receive into the record.

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II. Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether a Medicare contractor correctly determined to reactivate Petitioner's Medicare billing privileges effective June 18, 2018.

B. Findings of Fact and Conclusions of Law

Suppliers enrolled as participants in the Medicare program must revalidate their Medicare billing privileges in response to requests sent to them by CMS or one of its contractors. 42 C.F.R. § 424.535. In order to revalidate, the supplier must file certain requisite information with a Medicare contractor or with CMS. 42 C.F.R. § 424.510. CMS or its contractor may deactivate a supplier if the supplier fails to file requisite information within 90 days of receiving a request to file that information. 42 C.F.R. § 424.540(a)(3).

A decision by a Medicare contractor to reject an application for revalidation and to deactivate a supplier's billing privileges is not an appealable determination and it confers no hearing rights on the deactivated supplier. 42 C.F.R. § 498.3(b). Consequently, a deactivated supplier has no route of appeal from the deactivation but must file a new Medicare enrollment application in order to have its billing privileges reactivated. 42 C.F.R. § 424.540(b)(1).

CMS and its contractors process an application for reactivation of billing privileges under the identical criteria that they use to process new enrollment applications, relying on the requirements of 42 C.F.R. § 424.520(d)(1). This regulation effectively states that the earliest effective date of participation of a participating Medicare supplier will be the date when the contractor receives an enrollment application that the contractor accepts. As a consequence of this application, the deactivated supplier may not receive an effective participation date (date of reactivation) that is earlier than the date that it files an application for reactivation that the contractor accepts. 42 C.F.R. § 424.520(d)(1); Medicare Program Integrity Manual (MPIM) §§ 15.27.1.2, 15.29.4.3.

Medicare will not accept a supplier's claims for reimbursement for items or services that it provides on dates that fall between the date of deactivation and the effective date of reactivation. 42 C.F.R. § 424.555(b). The regulations plainly allow for a reimbursement gap. But, that gap, should it occur, is the consequence of regulatory language as has been interpreted by the Secretary via CMS.

The regulations governing reactivation have been the subject of numerous cases before the Departmental Appeals Board. Administrative law judges and the Board itself have ruled that CMS's application of the regulations constitutes a reasonable reading of regulatory language and, more important, expresses the Secretary's will. Willie Goffney,

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Jr., M.D., DAB No. 2763 at 6 (2017). CMS's interpretation of its regulations is settled law within this Department and at this juncture I have no authority to revisit it or to overturn it.

On December 11, 2017, a Medicare contractor sent a notice to Petitioner advising it that it needed to revalidate its Medicare enrollment. CMS Ex. 2. The notice advised Petitioner that failure to revalidate might result in Petitioner losing its Medicare billing privileges.

Petitioner did not file a reenrollment application until April 2, 2018. CMS Ex. 3. The contractor found that the application was incomplete in certain respects. On April 11, 2018, the contractor advised Petitioner that it needed to supply the contractor with additional specified information. CMS Ex. 6 at 1. It told Petitioner that failure to do so within 30 days would result in deactivation of Petitioner's Medicare billing privileges. Id. Petitioner responded to this request within a day. CMS Ex. 7. However, the contractor found that Petitioner had not supplied adequate information, and on April 16, 2018, it notified Petitioner by e-mail that information supplied by Petitioner remained inadequate to complete its application. CMS Ex. 8 at 1. The contractor gave Petitioner until May 10, 2018, to do so. Id.

On May 14, 2018, the contractor concluded that Petitioner had failed to respond adequately to the contractor's information request. On that date it rejected Petitioner's application and deactivated Petitioner's billing privileges effective that date. CMS Ex. 9; CMS Ex. 10.

Petitioner filed a new revalidation application with the contractor on June 18, 2018. CMS Ex. 11. The contractor approved this application. It reactivated Petitioner's billing privileges effective June 18, 2018, the date that Petitioner filed the application. CMS Ex. 12.

The consequence of the contractor's rejection of Petitioner's April 2, 2018 application on May 11, its deactivation of Petitioner's Medicare billing privileges on that date, and its subsequent approval of Petitioner's June 18, 2018 application, was that a gap was created from May 11 through June 17, 2018; for which dates Petitioner could not claim reimbursement for services for Medicare beneficiaries.

As I have discussed, Petitioner may not appeal the contractor's decision to deactivate its billing privileges. The contractor determined to reactivate Petitioner's billing privileges effective June 18, 2018, based on the reenrollment application that Petitioner filed on that date. That is the earliest date when Petitioner qualified for reactivation. Consequently, the facts and the applicable law support the contractor's determination and I must sustain it.

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Petitioner argues that the contractor improperly rejected Petitioner's initial revalidation application. It contends that it filed a completed enrollment application with the contractor, as the contractor requested, within the requisite time frame. Consequently, it contends that the contractor erred in concluding that Petitioner's April 2 application was incomplete and improperly rejected it. Petitioner asserts that it did not initially receive a notice of rejection from the contractor but only received a notice from the contractor that its billing privileges were being deactivated (however, it concedes that it subsequently received the contractor's notice of rejection of its April 2, 2018 application – see CMS Ex. 9). Petitioner's brief at 4. It argues that, in fact, the contractor had actually approved Petitioner's April 2, 2018 application inasmuch as Petitioner continued to receive reimbursement for services rendered up until May 10, 2018. Petitioner's brief at 3.

These arguments constitute an explicit challenge by Petitioner to the contractor's decision to reject Petitioner's April 2, 2018 application. Indeed, Petitioner states in its brief that: "[It] is submitting this appeal because ... [it believes that the contractor] erroneously rejected" its revalidation application. Petitioner's brief at 5. As I have explained, I lack any authority to consider this challenge. I may only decide whether the contractor reactivated Petitioner's billing privileges consistent with the application for reactivation that it completed on June 18, 2018. And, as I have found, the contractor did so.