Robert Fleming, Jr. PT, DAB CR5611 (2020)

DECISION

Petitioner, Robert Fleming, Jr., is a physical therapist, licensed in Alabama, who participates in the Medicare program as a supplier of services.  After his Medicare billing privileges were deactivated, he applied to reenroll in the program.  The Centers for Medicare & Medicaid Services (CMS) granted the application, effective February 16, 2017, resulting in a lengthy coverage lapse.  Petitioner now asks for an earlier effective date.  See P. Ex. 9 (asking that his effective date “be pushed back to a date that would make it possible to bill for any services provided by Mr. Fleming that would fall in to the timely filing range as of the date of this [request for reconsideration].”).

Because Petitioner filed his subsequently-approved enrollment application on February 16, 2017, I find that February 16 is the correct effective date for his enrollment.  Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 at 6-7 (2019); Urology Grp. of NJ, LLC, DAB No. 2860 at 7 (2018); Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017), aff’d sub nom. Goffney v. Azar, No. CV 17-8032 MRW (C.D. Cal. Sept. 25, 2019).

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Background

In a notice letter dated May 15, 2017, the Medicare contractor, Cahaba, advised Petitioner that it approved his Medicare enrollment effective February 9, 2017.  CMS Ex. 2 at 1; P. Ex. 7.  The effective date was incorrect, and, in a letter dated October 3, 2017, the contractor amended the effective date to February 16, 2017.  CMS Ex. 2 at 4.  Petitioner requested reconsideration.  CMS Ex. 3; P. Ex. 9.

In a reconsidered determination, dated September 25, 2017, the contractor affirmed the February 16 effective date.  CMS Ex. 1; P. Ex. 8.  Petitioner appealed.

Summary judgment.  Petitioner moves for summary judgment, which CMS opposes.  I find that this matter may be decided on the written record, without considering whether the standards for summary judgment are satisfied.  The initial order in this case instructed the parties to list any proposed witnesses and to submit their written direct testimony.  Acknowledgment and Pre-hearing Order at 3, 5 (¶¶ 4(c)(iv), 8) (November 20, 2017).  The order also directed the parties to indicate which, if any, of the opposing side’s witnesses the party wished to cross-examine and explained that an in-person hearing would be needed only if a party wishes to cross-examine the opposing side’s witness.  Id. at 5 (¶¶ 9, 10).  Petitioner lists no witnesses.  Although CMS lists one witness and provides her written declaration (CMS Ex. 7), Petitioner has not asked to cross-examine her.  An in-person hearing would therefore serve no purpose, and I may decide this case based on the written record without considering whether the standards for summary judgment are met. 

Petitioner submits his motion and brief (P. Br.) with 11 exhibits (P. Exs. 1-11).  CMS submits its pre-hearing brief and response to Petitioner’s motion (CMS Br.) with seven exhibits (CMS. Exs. 1-7).  In the absence of any objections, I admit into evidence P. Exs. 1-11 and CMS Exs. 1-7.  See Acknowledgment and Pre-hearing Order at 5 (¶ 7).

Discussion

Petitioner filed his subsequently-approved enrollment application on February 16, 2017, and his Medicare reactivation enrollment can be no earlier than that date.  42 C.F.R. § 424.520(d).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 furnished to program beneficiaries, a prospective supplier must enroll in the

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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.  

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. § 424.502.2   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.  For a non‑physician practitioner, the effective date for billing privileges “is the later of the date of filing” a subsequently-approved enrollment application or “the date that the supplier first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d) (emphasis added).

Revalidation and Deactivation.  To maintain his billing privileges, a supplier must, at least every five years, resubmit and recertify the accuracy of his 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 his enrollment information.  42 C.F.R. § 424.515(d) and (e).  Within 60 days of receiving CMS’s notice to recertify, the supplier must submit an appropriate enrollment application with complete and accurate information and supporting documentation.  42 C.F.R. § 424.515(a)(2).

If, within 90 days from receipt of CMS’s notice, the supplier does not furnish complete and accurate information and all supporting documentation or does not resubmit and certify the accuracy of his enrollment information, CMS may deactivate his billing privileges, and no Medicare payments will be made.  42 C.F.R. §§ 424.540(a)(3), 424.555(b).  To reactivate his billing privileges, the supplier must complete and submit a new enrollment application.  42 C.F.R. § 424.540(b)(1).  It is settled that, following deactivation, section 424.520(d) governs the effective date of reenrollment.  Sokoloff, DAB No. 2972 at 6-7; Urology Grp., DAB No. 2860 at 7; Goffney, DAB No. 2763 at 7.

I have no authority to review a deactivation.  Sokoloff, DAB No. 2972 at 6; Ark. Health Grp., DAB No. 2929 at 7-9 (2019).

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Petitioner’s deactivation and reenrollment.  In a notice letter, dated February 26, 2013, the contractor directed Petitioner to revalidate his Medicare enrollment by updating or confirming the information in his record.  The letter directed Petitioner to submit IMMEDIATELY an updated paper CMS-855 Medicare enrollment application or to review, update, and certify his information through the PECOS system.  The letter warned that Petitioner had to revalidate within 60 calendar days of the letter’s postmark date, or risk deactivation of his Medicare billing privileges.  CMS Ex. 4. 

Petitioner maintains that he submitted his reactivation packet on July 30, 2015.  P. Ex. 1.  However, the contractor denies receiving any response to its revalidation request.  CMS Ex. 5 at 1; CMS Ex. 7 (Bell Decl. ¶¶ 6, 8).  In any event, no matter how compelling the circumstances, I have no authority to review a deactivation.  Ark. Health Grp., DAB No. 2929 at 7-9, and cases cited therein.

By letter dated May 16, 2015, the contractor advised Petitioner that his billing privileges were stopped, effective May 15, 2015, because he had not responded to the February 26, 2013 revalidation request.  The letter advised Petitioner that, in order to resume billing, he should IMMEDIATELY submit an updated paper enrollment application, or he should review, update, and certify his information via PECOS.  CMS Ex. 5. 

Petitioner denies receiving this letter.  He claims that his billing agent made multiple calls to the contractor, but heard only an automated message advising that the contractor was “making every effort” to process a “higher than normal” number of applications.  The message asked that the caller not resubmit an application because that could delay processing.  P. Br. at 2; see P. Exs. 2, 3.  On February 9, 2017, the billing agent finally spoke to a contractor representative and learned that the 2015 application “had been lost.”  P. Br. at 2; see P. Ex. 3.

On February 16, 2017, Petitioner filed a Medicare enrollment application that the contractor approved.  CMS Ex. 6; CMS Ex. 7 (Bell Decl. ¶ 7); see P. Ex. 5.  Thus, pursuant to section 424.520(d), the date Petitioner filed his subsequently-approved enrollment application – February 16, 2017 – is the correct effective date of enrollment.  Sokoloff, DAB No. 2972 at 6-7; Urology Grp., DAB No. 2860 at 7-9; Goffney, DAB 2763 at 7.

I have no authority to grant Petitioner an earlier effective date based on equitable and policy arguments.  Sokoloff, DAB No. 2972 at 9.

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Conclusion

Because Petitioner filed his subsequently-approved reenrollment application on February 16, 2017, CMS properly granted his Medicare reenrollment effective that date.