Brandon C. Weber, PA, DAB CR5280 (2019)

DECISION

Petitioner’s Medicare billing privileges were deactivated on August 30, 2017, as a result of his failure to timely comply with a request that he revalidate his Medicare enrollment.  For the reasons discussed below, I conclude that the effective date of Petitioner’s reactivated Medicare billing privileges remains September 13, 2017.

I. Background and Procedural History

On April 11, 2017, Wisconsin Physicians Service Insurance Corporation (WPS), a Medicare administrative contractor, sent a letter to Petitioner, a physician assistant, requesting that he revalidate his Medicare enrollment no later than June 30, 2017.  See Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 9 at 1, 4.  WPS sent the letter to separate addresses in Sterling Heights, Michigan, and Oklahoma City, Oklahoma.  CMS Ex. 9 at 1, 4.  WPS instructed Petitioner to “update or confirm all the information in [his] record . . . .”  CMS Ex. 9 at 1, 4.  WPS cautioned Petitioner that a “[f]ailure to respond to this notice will result in a hold on [his] payments, and possible deactivation of [his] Medicare enrollment,” and further warned that, in the event of

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deactivation, “[Petitioner] will not be paid for services rendered during the period of deactivation” which “will cause a gap in [his] reimbursement.”  CMS Ex. 9 at 1, 4.

On July 5, 2017, WPS sent Petitioner a letter informing him that it had not received a revalidation application by the June 30, 2017 deadline.  CMS Ex. 8 at 1.  WPS again warned Petitioner that his billing privileges could be deactivated, which would cause a gap in reimbursement.  CMS Ex. 8 at 1.  Because Petitioner did not submit a revalidation application in response to the contractor’s request, WPS deactivated Petitioner’s billing privileges effective August 30, 2017.  CMS Ex. 7.

Petitioner submitted a revalidation application, Form CMS-855I, via the internet-based Provider, Enrollment, Chain, and Ownership System (PECOS) that WPS received on September 13, 2017.  CMS Ex. 6.  WPS reactivated Petitioner’s billing privileges, effective September 13, 2017, explaining that “the effective date . . . reflects a gap in coverage from 8/30/2017 – 9/12/2017 for failure to respond to the revalidation requested development.”  CMS Exs. 3 at 1; 4 at 1 (emphasis omitted).

WPS received Petitioner’s request for reconsideration, dated September 19, 2017, in which he disputed the effective date assigned for his reactivated billing privileges.  CMS Ex. 5.  Petitioner explained that “[t]he most recent re-validation deadline was missed as a result of the incorrect correspondence address for [his] profile” and, “[t]herefore, [he] did not receive the notice.”  CMS Ex. 5 at 1.

WPS issued a reconsidered determination on October 10, 2017, in which it maintained the September 13, 2017 effective date of Petitioner’s reactivated billing privileges.  CMS Ex. 1 at 1.  WPS explained that it received the enrollment application for purposes of reactivation on September 13, 2017.  CMS Ex. 1 at 2.

Petitioner submitted a request for an administrative law judge (ALJ) hearing that was received on October 31, 2017.  ALJ Carolyn Cozad Hughes issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) on November 6, 2017, at which time she directed the parties to file their respective pre-hearing exchanges.1 CMS filed a Pre-Hearing Brief and Motion for and Memorandum in Support of Motion for Summary Judgment (CMS Br.), along with eleven proposed exhibits (CMS Exs. 1-11).  Petitioner filed a letter in lieu of a brief or response to CMS’s motion for summary judgment.2

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Neither party has submitted written direct testimony, as addressed in sections 8 through 10 of the Pre-Hearing Order.  A hearing for the purpose of cross-examination is therefore unnecessary.  I consider the record in this case to be closed, and the matter is ready for a decision on the merits.3

II. Issue

Whether CMS had a legitimate basis to assign Petitioner a September 13, 2017 effective date for his reactivated billing privileges.

III. Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2).

IV. Findings of Fact, Conclusions of Law, and Analysis4

1. On April 11, 2017, WPS requested that Petitioner revalidate his Medicare enrollment no later than June 30, 2017.

2. Petitioner did not respond to the revalidation request, and WPS deactivated Petitioner’s billing privileges effective August 30, 2017.

3. WPS received Petitioner’s enrollment application for purposes of revalidation and reactivation on September 13, 2017, and WPS ultimately processed that application to approval.

4. An effective date earlier than September 13, 2017, is not warranted for the reactivation of Petitioner’s Medicare enrollment and billing privileges.

As a physician assistant, Petitioner is a “supplier” for purposes of the Medicare program.  See CMS Ex. 6 at 1; see also 42 U.S.C. § 1395x(d); 42 C.F.R. § 400.202 (definition of

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supplier); 42 C.F.R. § 498.2.  A “supplier” furnishes services under Medicare and the term applies to physicians or other practitioners that are not included within the definition of the phrase “provider of services.”  42 U.S.C. § 1395x(d).  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 at 42 C.F.R. Part 424, subpart P, establish the requirements for a supplier to enroll in the Medicare program.  42 C.F.R. §§ 424.510 - 424.516; see also 42 U.S.C. § 1395cc(j)(1)(A) (authorizing the Secretary of the U.S. Department of Health and Human Services to establish regulations addressing the enrollment of providers and suppliers in the Medicare program).  A supplier who seeks billing privileges under Medicare “must submit enrollment information on the applicable enrollment application.”  42 C.F.R. § 424.510(a)(1).  “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)(1); see also 42 C.F.R. § 424.510(d) (listing enrollment requirements).  Thereafter, “[t]o maintain Medicare billing privileges, a . . . supplier . . . must resubmit and recertify the accuracy of its enrollment information every 5 years.”  42 C.F.R. § 424.515.

CMS is authorized to deactivate an enrolled supplier’s Medicare billing privileges if the enrollee does not provide complete and accurate information within 90 days of a request for such information.  42 C.F.R. § 424.540(a)(3).  If CMS deactivates a supplier’s 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); Urology Group of NJ, LLC, DAB No. 2860 at 10 (2018) (“The regulations, taken together, clearly establish that a deactivated provided or supplier was not intended to be entitled to Medicare reimbursement for services rendered during the period of deactivation.”).  Further, and quite significantly, the Departmental Appeals Board (DAB) has unambiguously stated that “[i]t is certainly true that [the petitioner] may not receive payment for claims for services during any period when his billing privileges were deactivated.”  Willie Goffney, Jr., M.D., DAB No. 2763 at 6 (2017); see Urology Group, DAB No. 2860 at 11 (“Taking these unique effects of revocation into consideration, it is reasonable to conclude that CMS intended for revocations and deactivations to share the feature of precluding a provider or supplier from collecting reimbursement for services rendered during the period of inactive Medicare billing privileges, while simultaneously intending for revocations to have more severe consequences on a provider’s or supplier’s ability to participate.”); Frederick Brodeur, M.D., DAB No. 2857 at 16 (2018) (“Allowing a deactivated supplier to bill for services furnished during a period of deactivation would conflict with section 424.555(b) of the regulations . . . .”).  The regulation authorizing deactivation explains that “[d]eactivation of Medicare billing privileges is considered an action to protect the provider or supplier from misuse of its billing number and to protect the Medicare Trust Funds from unnecessary overpayments.”  42 C.F.R. § 424.540(c).

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On April 11, 2017, WPS mailed a letter to Petitioner directing him to revalidate his Medicare enrollment record no later than June 30, 2017, and WPS warned that Petitioner’s failure to revalidate could result in deactivation of his Medicare billing privileges, with a resulting gap in reimbursement.  CMS Ex. 9 at 1, 4.  WPS thereafter deactivated Petitioner’s billing privileges on August 30, 2017, after Petitioner did not revalidate his enrollment.  CMS Ex. 7.  In seeking reconsideration, Petitioner conceded he did not receive the revalidation request because his enrollment information was not up-to-date at that time, and that he “immediately updated and corrected” this information after he learned of the deactivation of his billing privileges.  CMS Ex. 5 at 1.  In his request for hearing, Petitioner argued that a former employer, Dequindre Urgent Care, updated his enrollment information during his employment between 2010 and 2014.5  However, Petitioner’s apparent insinuation that Dequindre Urgent Care could be responsible for his failure to receive the revalidation request is simply unpersuasive; even if Dequindre Urgent Care assisted Petitioner in updating his enrollment record to include his affiliation with that medical practice between 2010 and 2014, Petitioner was responsible for updating his enrollment record with any changes and did not do so in the more than two years that followed his departure from that practice.  WPS acted appropriately when it sent revalidation notices to medical practice addresses listed in his then-current enrollment record.6

The pertinent regulation with respect to the effective date of reactivation is 42 C.F.R. § 424.520(d).  Urology Group, DAB No. 2860 at 7 (“The governing authority to determine the effective date for reactivation of Petitioner’s Medicare billing privileges is 42 C.F.R. § 424.520(d).”).  Section 424.520(d) states that “[t]he effective date for billing privileges for physicians, non-physician practitioners, physician and non-physician practitioner organizations . . . is the later of – (1) [t]he date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or (2) [t]he date that the supplier first began furnishing services at a new practice location.”  The DAB has explained that the “date of filing” is the date “that an application, however sent to a contractor, is actually received.”  Alexander C. Gatzimos, MD, JD, LLC, DAB No. 2730 at 5 (2016) (emphasis omitted).  WPS deactivated Petitioner’s billing privileges

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based on his failure to comply with the revalidation request (CMS Ex. 7), and, on September 13, 2017, Petitioner electronically filed an application for purposes of revalidation and reactivation that was processed to approval.  CMS Ex. 6; see CMS Ex. 1 at 2.  Based on the September 13, 2017 receipt date of the enrollment application that was processed to approval, WPS did not err in assigning a September 13, 2017 effective date for reactivated billing privileges.  42 C.F.R. § 424.520(d); see Urology Group, DAB No. 2860 at 9 (“Moreover, the fact that a supplier must file a new enrollment application in order to reactivate its billing privileges is consistent with the language of section 424.520(d) and compelling evidence that the provision should apply to reactivations.”); Willie Goffney, DAB No. 2763 at 6 (“It is certainly true that [the petitioner] may not receive payment for claims for services during any period when [his] billing privileges were deactivated.”); Frederick Brodeur, DAB No. 2857 at 16 (“Petitioner remained enrolled in Medicare, but his deactivated status made [him] ineligible for payment for any covered services he furnished to otherwise eligible Medicare beneficiaries, pursuant to section 424.555(b), until he provided the information necessary to reactivate his billing privileges.”).

Petitioner is challenging the assignment of a September 13, 2017 effective date of his reactivated billing privileges, which resulted in a two-week gap in his Medicare billing privileges.  The deactivation of Petitioner’s billing privileges on August 30, 2017, based on his failure to comply with a revalidation request is not reviewable.  Willie Goffney, DAB No. 2763 at 5 (stating no regulation provides appeal rights with respect to the contractor’s deactivation); Frederick Brodeur, DAB No. 2857 at 12 (“A contractor’s deactivation decision is not an initial determination subject to ALJ or [DAB] review.”).  I can only review the effective date assigned for Petitioner’s reactivated billing privileges, and pursuant to 42 C.F.R. § 424.520(d), WPS had a legitimate basis to assign an effective date of September 13, 2017 for Petitioner’s reactivated billing privileges.

To the extent that Petitioner’s request for relief is based on principles of equitable relief, I cannot grant such relief.  US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).  Petitioner points to no authority by which I may grant him relief from the applicable regulatory requirements, and I have no authority to declare statutes or regulations invalid or ultra vires.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (“An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground.”).

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V. Conclusion

For the foregoing reasons, I uphold the September 13, 2017 effective date of Petitioner’s reactivated billing privileges.