John Michael Conoyer, M.D., DAB CR5370 (2019)

DECISION

Wisconsin Physician Services (WPS), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), reactivated the Medicare billing privileges of John Michael Conoyer, M.D. (Petitioner or Dr. Conoyer) as of June 8, 2017. Petitioner requested a hearing before an administrative law judge to dispute this effective date. As explained herein, WPS properly established June 8, 2017 as the effective date of Petitioner’s enrollment, as it is the filing date of his most recent successful application. 

I. Background

On January 9, 2017, WPS notified Petitioner by letter addressed to his practice that he needed to revalidate his enrollment record by March 31, 2017. CMS Ex. 2. WPS 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.” Id. at 1.

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On March 8, 2017, Petitioner submitted a Form CMS‑855I through the Provider Enrollment, Chain, and Ownership System (PECOS), indicating that Petitioner was “adding, deleting, or changing general Medicare enrollment information.” CMS Ex. 3 at 1. Petitioner indicated on this form that he wished to update his address and identify a new contact person, Michelle Russell, at that new address. Id. at 3. Petitioner also requested his benefits be reassigned to “Midwest ENT Centre, PC.” Id. The language on this standardized form advised Petitioner that in order to complete his application, he would need to sign and submit several documents by U.S. Mail, including Form CMS‑855R and two certification statements. CMS Ex. 3 at 1; P. Ex. 3 at 3.

On March 14, 2017, WPS notified Petitioner by letter that his requested changes of contact information and reassignment were approved. CMS Ex. 4. In that letter, WPS did not indicate Petitioner had successfully revalidated his enrollment in the Medicare program, nor did it provide any further information regarding the revalidation process. Id.

On April 5, 2017, WPS sent Petitioner a payment hold notification letter indicating that he had failed to properly revalidate his Medicare enrollment by the requested date of March 31, 2017. CMS Ex. 5. WPS warned Petitioner that should he fail to revalidate his enrollment, he would “not be paid for services rendered during the period of deactivation,” resulting in a gap in his reimbursement. Id. Petitioner did not submit any documents in response. On June 5, 2017, WPS advised Petitioner his billing privileges were stopped effective June 5, 2017 because he failed to revalidate his enrollment. CMS Ex. 6.

On June 8, 2017, Petitioner again submitted a Form CMS‑855I through PECOS, this time indicating that he was “revalidating Medicare enrollment information.” CMS Ex. 7. The language on this form again indicated that Petitioner needed to submit additional documents by U.S. Mail, including a Form CMS‑855R and two certification statements. Id. at 3-4. WPS sent Petitioner a development letter on June 14, 2017, requesting that Petitioner file Form CMS‑855R by U.S. Mail by July 13, 2017. CMS Ex. 8. Petitioner submitted the requested information that day and WPS processed his June 8 application to completion, notifying Petitioner on July 24, 2017 that his enrollment was revalidated. CMS Ex. 10. This letter also advised Petitioner that there was a lapse in his Medicare billing privileges from June 5, 2017 to June 7, 2017. Id. at 2.

Petitioner sought reconsideration of WPS’s determination and asked that the gap in his billing coverage from June 5, 2017 to June 7, 2017 be eliminated. CMS Ex. 11. In response, WPS issued a reconsidered determination denying Petitioner’s request and confirming Petitioner’s effective date of reactivation to be June 8, 2017. CMS Ex. 1.

Petitioner timely requested an administrative law judge hearing. I was designated to hear and decide this case and issued an Acknowledgment and Pre‑hearing Order (Pre‑hearing

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Order) on October 23, 2017.  I 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 judgment, and 11 exhibits (CMS Exs. 1‑11). Petitioner filed a brief (P. Br.) and 17 exhibits (P. Exs. 1‑17).

II. Admission of Exhibits and Decision on the Record

Neither Petitioner nor CMS objected to the exhibits offered by the other party.  In the absence of objections, I admit CMS Exs. 1‑11 and P. Exs. 1‑17 into the record.  Neither party offered the 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 decide this case on the record based on the parties’ written submissions and arguments.  Civ. Remedies Div. Pro. ¶ 19(d). CMS’s motion for summary judgment is denied as moot.

III. Issue

Whether WPS, acting on behalf of CMS, properly established June 8, 2017, as the effective date of reactivation of Petitioner’s Medicare enrollment and billing privileges.

IV. Jurisdiction

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)).

V. Discussion

A. Applicable Law

1. Enrollment

Petitioner participates in the Medicare program as a “supplier” of services.  Social Security Act § 1861(d); 42 C.F.R. § 498.2. To receive Medicare payments for the services it furnishes to program beneficiaries, a prospective supplier must enroll in the program. 42 C.F.R. § 424.505.  “Enrollment” is the process by which CMS and its contractors: 1) identify the prospective supplier; 2) validate the supplier’s eligibility to provide items or services to Medicare beneficiaries; 3) identify and confirm a supplier’s owners and practice location; and 4) grant the supplier Medicare billing privileges. 42 C.F.R. § 424.502.

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To enroll, a prospective supplier must complete and submit an enrollment application. 42 C.F.R. §§ 424.510(d)(1), 424.515(a). An enrollment application is either a CMS-approved paper application or an electronic process approved by the Office of Management and Budget.  42 C.F.R. § 424.502. When CMS determines that a prospective supplier meets the applicable enrollment requirements, it grants Medicare billing privileges, which means that the supplier can submit claims and receive payments from Medicare for covered services provided to program beneficiaries. The effective date for its billing privileges “is the later of the date of filing” a subsequently-approved enrollment application or “the date that [an enrolled physician] . . . first began furnishing services at a new practice location.” 42 C.F.R. § 424.520(d) (emphasis added). In this case, the date of filing of Petitioner’s subsequently-approved enrollment application is relevant. If a supplier satisfies certain requirements, CMS will allow a supplier to bill retrospectively for up to 30 days prior to the effective date. 42 C.F.R. § 424.521(a)(1).

2. Revalidation

To maintain billing privileges, a supplier must, at least every five years, resubmit and recertify the accuracy of its enrollment information, a process referred to as “revalidation.” 42 C.F.R. § 424.515. In addition to periodic revalidations, CMS may, at other times and for its own reasons, ask a supplier to recertify the accuracy of its enrollment information. 42 C.F.R. § 424.515(d). Within 60 days of receiving CMS’s notice to recertify, a supplier must submit an appropriate enrollment application with complete and accurate information and supporting documentation. 42 C.F.R. § 424.515(a)(2).

3. Deactivation

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). CMS is authorized to deactivate an enrolled supplier’s Medicare billing privileges if the enrollee does not report a change to the information supplied on the enrollment application within 90 calendar days of when the change occurred. Changes that must be reported include, but are not limited to, a change in practice location. 42 C.F.R. § 424.540(a)(2).  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).

The Departmental Appeals Board (DAB) has unambiguously stated that a supplier “may not receive payment for claims for services during any period when [her] billing privileges were deactivated.” Willie Goffney, Jr., M.D.,DAB No. 2763 at 6 (2017); see Urology Grp. of NJ, LLC,DAB No. 2860 at 11 (2018) (“Taking these unique effects of revocation into consideration, it is reasonable to conclude that CMS intended for

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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.”).

4. Reactivation

The reactivation of an enrolled provider or supplier’s billing privileges is governed by 42 C.F.R. § 424.540(b). The process for reactivation is contingent on the reason for deactivation. If CMS deactivates a supplier’s billing privileges due to a reason other than nonsubmission of a claim, the supplier must apply for CMS to reactivate its Medicare billing privileges by completing and submitting the appropriate enrollment application(s) or recertifying its enrollment information, if deemed appropriate. 42 C.F.R. §§ 424.540(a)(3), (b)(1).

B. Findings of Fact and Conclusions of Law1

1. Petitioner filed a subsequently approved revalidation application on June 8, 2017, making that date the effective date of his reactivation.

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).

Here, Petitioner submitted an application on June 8, 2017 to reactivate his Medicare enrollment.  CMS Ex. 7. After requesting additional documentation from Petitioner, WPS processed that June 8, 2017 application to approval. CMS Ex. 8. The plain language of the governing regulations requires me to find that the effective date of reactivation of Petitioner’s Medicare enrollment is June 8, 2017.

2. Petitioner cannot appeal his deactivation.

Petitioner’s arguments concern the revalidation process.2 He claims he is being penalized for “unclear directions” in the “ambiguous online revalidation process.” P. Br. at 3.

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Petitioner explains that he believed he confirmed his successful submission on March 10, 2017, prior to the March 31, 2017 deadline, based on his electronic submissions of his revalidation form accompanied by his e-signature, which yielded what he understood to be confirmation of his successful submission.  Id. citing P. Ex. 10 at 1.  Petitioner also points out that the notices he received did not indicate he was required to submit both electronic and paper submissions. Id. citing P. Ex. 1 at 1-2; P. Ex. 5 at 1-2; P Ex. 7 at 1-2.3

While I am sympathetic to Petitioner’s good-faith effort to revalidate in a timely manner, I have no jurisdiction to consider whether WPS acted properly in deactivating Petitioner’s Medicare enrollment. Deactivation is not an “initial determination” that can eventually be reviewed by an administrative law judge, and deactivation decisions in fact 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, which is the act by WPS in this case that resulted in Petitioner’s deactivation. 42 C.F.R. § 424.525(d). CMS has the authority to determine whether and when a revalidation application is compete and contains the appropriately signed forms and documents. I do not have authority to review a determination by CMS or one of its contractors that a supplier’s application should be rejected.

Finally, to the extent Petitioner believes he is entitled to reimbursement regardless of the regulatory requirements because of the confusion allegedly caused by the notices he received, I do not have authority to provide equitable relief based on principles of fairness and thus cannot change Petitioner’s effective date on that basis. US Ultrasound, DAB No. 2302 at 8 (2010) (“[n]either 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.”).

VI. Conclusion

For the foregoing reasons, I affirm CMS’s determination that the effective date of Petitioner’s Medicare enrollment and billing privileges is June 8, 2017.