Tosan Fregene, M.D. and Oncology Clinics, Inc., DAB CR5509 (2020)

DECISION

The Centers for Medicare & Medicaid Services (CMS), through a CMS contractor, determined that the effective date for reactivation of the Medicare billing privileges for Tosan Fregene, M.D. and Oncology Clinics, Inc. (Petitioners) was July 25, 2018.  Petitioners requested a hearing to dispute that effective date.  On its own initiative, the CMS contractor revised the reactivation effective date to July 19, 2018.  However, this date is still short of the effective date Petitioners seek. 

The narrow issue over which I have authority in this case is to decide the effective date of the reactivation of Petitioners’ Medicare billing privileges.  The effective date of reactivation is governed by the date the CMS contractor received an enrollment application that it processed to completion.  Based on the record, I must affirm the revised reactivation effective date of July 19, 2018.

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I. Background and Procedural History

Petitioners were enrolled in the Medicare program as suppliers on July 1, 2006.  See CMS Exhibit (Ex.) 19 at 1. 

A CMS contractor sent four notices to Petitioners on March 8, 2018, indicating that Petitioners needed to revalidate their enrollment by submitting a CMS-855 enrollment application by May 31, 2018.  The notices warned that if the CMS contractor did not receive a response, the CMS contractor may deactivate Petitioners’ Medicare billing privileges, in which event Petitioners would “not be paid for services rendered during the period of deactivation.  This will cause a gap in . . . reimbursement.”  CMS Exs. 1-4. 

In response to these notices, Petitioners timely submitted two revalidation enrollment applications, a CMS-855B application and a CMS-855I application.  CMS Exs. 5-6.  In a June 4, 2018 notice sent via email, the Medicare contractor acknowledged receipt of the CMS-855I application and indicated that Petitioners needed to provide additional information within 30 days or else the Medicare contractor would deactivate Petitioners’ billing privileges.  CMS Ex. 7; CMS Ex. 24 at 1.  In another notice also dated June 4, 2018, the CMS contractor acknowledged receipt of the CMS-855B application, but returned it to Petitioners because it was not necessary because the CMS-855I revalidation application was sufficient for both Petitioners.  CMS Ex. 8.  On June 4, 2018, staff from the Medicare contractor called Petitioners’ office at 8:34 a.m., but Petitioners’ authorized contact person was not present and the contractor staff person who made the call neither left a message nor made a subsequent call.  CMS Ex. 23.

In a July 6, 2018 notice, the CMS contractor stated that it had rejected Petitioners’ CMS-855I application because Petitioners failed to provide the information that the CMS contractor had requested.  CMS Ex. 10.  In another notice dated July 6, 2018, the CMS contractor informed Petitioners that it had deactivated Petitioners’ Medicare billing privileges because Petitioners had not revalidated their enrollments.  The notice indicated that Petitioners needed to file a CMS-855 enrollment application.  CMS Ex. 9.  

Petitioners submitted a new CMS-855I revalidation enrollment application, which the Medicare contractor received on “2018200” (using the Julian calendar), which is July 19, 2018.  CMS Ex. 11.  The CMS contractor requested additional information and Petitioners provided the requested information.  CMS Exs. 12-18. 

On September 7, 2018, the CMS contractor issued an initial determination approving Petitioners’ CMS-855I application, but noted that Petitioners “will have a gap in billing privileges from July 5, 2018 through July 24, 2018 for failing to respond to a development request related to a revalidation application.  [Petitioners] will not be reimbursed for services provided to Medicare beneficiaries during this time period since [Petitioners] were not in compliance with Medicare requirements.”  CMS Ex. 19 at 1.

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In a September 10, 2018 letter, Petitioners requested reconsideration of the initial determination.  Petitioners asserted that they did not receive the CMS contractor’s email notice that Petitioners needed to submit additional information.  Further, Petitioners submitted proof that they sent the second CMS-855I application on July 18, 2018, by FEDEX overnight service, and the CMS contractor received it on July 19, 2018.  CMS Ex. 20. 

On October 10, 2018, the CMS contractor issued a reconsidered determination that affirmed the initial determination.  CMS Ex. 22.  However, in a February 4, 2019 revised determination, the CMS contractor concluded that it had received Petitioners’ second CMS-855I application on July 19, 2018, and “reduce[d] the billing gap to a period from July 5, 2018, through July 18, 2018.”  Petitioner (P.) Ex. 2 at 3; CMS Ex. 25 at 3.

Petitioners timely requested an ALJ hearing (Hearing Request) in which Petitioners asserted that they never received the June 4, 2018 emails requesting additional information and, after receiving notice of the deactivation, it took until July 16, 2018, to make contact with staff from the Medicare contractor.  On January 10, 2019, I issued an Acknowledgment and Prehearing Order (Prehearing Order), which established a schedule for prehearing exchanges.  In response, CMS filed a motion for summary judgment with a brief in support of the motion (CMS Br.) and 25 exhibits (CMS Exs. 1-25).  Petitioner then filed a brief (P. Br.) and two exhibits (P. Exs. 1-2).

II. Decision on the Written Record

I admit all of the proposed exhibits into the record without objection.  Prehearing Order ¶ 7; Civil Remedies Division Procedures (CRDP) § 14(e).

The Prehearing Order advised the parties to submit written direct testimony for each witness and that an in-person hearing would only be held if a party requested to cross-examine a witness.  Prehearing Order ¶¶ 8-10; CRDP §§ 16(b), 19(b).  Neither party has offered any written direct testimony.  Therefore, I issue this decision based on the written record.  Prehearing Order ¶¶ 10-11; CRDP § 19(d).

III. Issue

Whether CMS had a legitimate basis to assign July 19, 2019, as the effective date for the reactivation of Petitioners’ Medicare billing privileges.

IV. Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R §§ 498.3(b)(15), 498.5(l)(2); see also 42 U.S.C. § 1395cc(j)(8).

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V. Findings of Fact, Conclusions of Law, and Analysis

My findings of fact and conclusions of law are set forth in italics and bold font.

The Social Security Act (Act) authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations governing the enrollment process for providers and suppliers.  42 U.S.C. §§ 1302, 1395cc(j).  A “supplier” is “a physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services” under the Medicare provisions of the Act.  42 U.S.C. § 1395x(d); see also 42 U.S.C. § 1395x(u).

A supplier must enroll in the Medicare program to receive payment for covered Medicare items or services.  42 C.F.R. § 424.505.  The term “Enroll/Enrollment means the process that Medicare uses to establish eligibility to submit claims for Medicare covered items and services.”  42 C.F.R. § 424.502 (emphasis in original).  A supplier seeking billing privileges under the Medicare program must “submit enrollment information on the applicable enrollment application.  Once the . . . supplier successfully completes the enrollment process . . . CMS enrolls the . . . supplier into the Medicare program.”  42 C.F.R. § 424.510(a).  CMS then establishes an effective date for billing privileges under the requirements stated in 42 C.F.R. § 424.520(d) and may permit limited retrospective billing under 42 C.F.R. § 424.521.

To maintain Medicare billing privileges, suppliers must revalidate their enrollment information at least every five years; however, CMS reserves the right to require revalidation at any time.  42 C.F.R. § 424.515.  When CMS notifies suppliers that it is time to revalidate, the suppliers must submit the appropriate enrollment application, accurate information, and supporting documents within 60 calendar days of CMS’s notification.  42 C.F.R. § 424.515(a)(2).

CMS can deactivate an enrolled supplier’s Medicare billing privileges if the enrollee fails to comply with revalidation requirements.  42 C.F.R. § 424.540(a)(3).  When 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).  If CMS deactivates a supplier’s billing privileges due to an untimely response to a revalidation request, the enrolled supplier may apply for CMS to reactivate its Medicare billing privileges by completing a new enrollment application or, if deemed appropriate, recertifying its enrollment information that is on file.  42 C.F.R. § 424.540(b)(1)-(2).

1. Petitioners submitted a revalidation enrollment application (CMS-855I) via FEDEX overnight delivery on July 18, 2018, which was received by the CMS contractor on July 19, 2018.  The CMS contractor ultimately approved that enrollment application. 

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Following the rejection of their first CMS-855I application, on July 18, 2018, Petitioners sent a second CMS-855I to the CMS contractor by FEDEX overnight.  CMS Ex. 11 at 32; CMS Ex. 20 at 8.  The CMS contractor received that application on July 19, 2018.  CMS Ex. 11 (Julian calendar date stamp on each page of the application was 2018200); CMS Ex. 20 at 8.  The CMS contractor approved Petitioners’ CMS-855I application and reactivated Petitioners’ billing privileges effective July 19, 2018.  P. Ex. 2 at 3; CMS Ex. 19 at 1; CMS Ex. 25 at 3.

2. The effective date for Petitioners Medicare billing privileges is July 19, 2018.

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).  The Departmental Appeals Board has applied these effective date provisions to reactivation cases and its decisions doing so are consistent with § 424.555(b)’s prohibition on reimbursing services while a provider or supplier is deactivated.  Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 at 6-7 (2019).

In the present case, the CMS contractor initially and on reconsideration determined that Petitioners’ effective date for reactivation of their Medicare billing privileges was July 25, 2018.  CMS Exs. 19, 22.  However, the CMS contractor later modified the effective date of reactivation to July 19, 2018.  P. Ex. 2 at 3; CMS Ex. 25 at 3.  The CMS contractor correctly applied the regulations in the revised determination. 

Although a July 19, 2018 effective date reduces the gap in billing privileges by a few days, Petitioners seek in this case to remove the gap in Medicare billing privileges entirely.  In their submissions, Petitioners argue that the CMS contractor misapplied the regulations to deactivate Petitioners’ billing privileges and did not give proper notice of the deactivation.  P. Br at 3.  Petitioners also assert that they never received the June 4, 2018 request for additional information and that it took from July 6 until July 16, 2018, to speak with a representative from the CMS contractor.  Hearing Request at 1.

With respect to Petitioners’ arguments related to their deactivation, I do not have the authority to review CMS’s decision to reject Petitioners’ first revalidation enrollment application and deactivate Petitioners’ Medicare billing privileges.  CMS’s rejection of an enrollment application is not subject to administrative review.  42 C.F.R. § 424.525(d).  I also do not have the authority to review CMS’s deactivation of Petitioners’ Medicare billing privileges because deactivation is not an “initial determination” subject to appeal, and deactivation decisions have a separate review

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process involving the submission of a rebuttal to CMS.  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), aff’d, Goffney v. Azar, No. 2:17-CV-8032 MRW (C.D. Cal. Sept. 25, 2019).  As stated above, I only have authority to decide whether the date of reactivation of Petitioners’ billing privileges is correct based on the facts in this case and the law.  Ark. Health Grp., DAB No. 2929 at 12 (2019) (“Where, as here, the contractor deactivated Petitioner’s billing privileges, the issue for us (and the ALJ) is the effective date of reactivation.”). 

Further, to the extent that Petitioners’ request that I provide an earlier effective date is premised on Petitioners’ attempts to contact the CMS contractor after learning of the deactivation, I do not have authority to provide equitable relief based on principles of fairness or equitable estoppel and thus cannot change Petitioners’ effective date for that reason.  US Ultrasound, DAB No. 2302 at 8 (2010) (“[n]either the ALJ nor the [Departmental Appeals] Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).

VI. Conclusion

I affirm CMS’s determination that Petitioners’ effective date for Medicare billing privileges is July 19, 2018.