Anthony L. Thomas, M.D., DAB CR5721 (2020)

DECISION

Petitioner, Anthony L. Thomas, M.D., is a physician, practicing in Mississippi, who participates in the Medicare program as a supplier of services. His Medicare billing privileges were deactivated, and he subsequently reenrolled in the program. The Centers for Medicare & Medicaid Services (CMS) granted his application, with an effective date of December 21, 2017, resulting in a 16-day coverage gap.

Petitioner complains that he did not receive the deactivation notice letters and that the Medicare contractor did not abide by the rules for contacting the supplier. He asks to be reimbursed for the services he rendered during the coverage gap. My authority, however, is too limited to grant Petitioner the relief he seeks.

Because Petitioner filed his subsequently-approved enrollment application on December 21, 2017, I find that December 21 is the correct effective date for his enrollment.

Background

In a notice letter dated January 19, 2018, the Medicare contractor, Novitas Solutions, Inc., advised Petitioner that it approved his revalidated Medicare enrollment application,

Page 2

with a gap in billing privileges from December 5 through 20, 2017. CMS Ex. 12.

Petitioner requested reconsideration, complaining that he had not received notice to reactivate his billing privileges. CMS Ex. 13.

In a reconsidered determination, dated May 1, 2018, a contractor hearing specialist officer affirmed the December 21, 2017 effective date. CMS Ex. 1. Petitioner appealed.

CMS moves for summary judgment. However, because neither party proposes any witnesses, an in-person hearing would serve no purpose. See Acknowledgment and Prehearing Order at 3, 5 (¶¶ 4(c)(iv), 8) (June 28, 2018). I may therefore decide this case based on the written record, without considering whether the standards for summary judgment are satisfied.

CMS submits its motion and brief (CMS Br.) with 13 exhibits (CMS Exs. 1-13). Petitioner submits a brief in response (P. Br.) and one exhibit (P. Ex. 1). In the absence of any objections, I admit into evidence CMS Exs. 1-13 and P. Ex. 1. See Acknowledgment and Pre-hearing Order at 5 (¶ 7).

Discussion

On December 21, 2017, Petitioner filed his subsequently-approved application to reactivate his billing privileges, and the effective date can be no earlier than that date. 42 C.F.R. § 424.520(d).1

Enrollment. Petitioner Thomas 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 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

Page 3

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 physician, the effective date for billing privileges “is the later of the date of filing” a subsequently approved enrollment application or “[t]he 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. Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 (2019); Urology Grp. of NJ, LLC, DAB No. 2860 (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).

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

Petitioner’s deactivation and reenrollment. In a notice letter, dated January 9, 2017, the contractor directed Petitioner to revalidate his Medicare enrollment record by updating or confirming the information there. The letter directed Petitioner to submit, no later than March 31, 2017, an updated paper CMS-855 Medicare enrollment application or to review, update, and certify its information through the PECOS system. The letter warned that Petitioner’s failure to respond could result in deactivation of his Medicare enrollment. The contractor sent a copy of this letter to the correspondence address it had

Page 4

on file for Petitioner. CMS Ex. 6. It sent a second copy to the Anderson Regional Medical Center, the entity to which he reassigned his billing privileges. CMS Ex. 7; see CMS Ex. 3 at 5.

The contractor received no response.

In a second letter, dated November 9, 2017, the contractor noted that Petitioner had not revalidated his enrollment by March 31; the letter again warned that he would not be paid for services rendered during a period of deactivation. CMS Ex. 9. The contractor sent a copy of the letter to Petitioner’s correspondence address and a copy to his business address. CMS Exs. 9, 10.

Again, the contractor received no response.

In a letter, dated December 6, 2017, the contractor advised Petitioner that his billing privileges were stopped, effective December 5, 2017, because he had not revalidated his enrollment record or had not responded to the contractor’s requests for information. To revalidate, the letter instructed him to submit an updated paper enrollment application, or to review, update, and certify his information via PECOS. CMS Ex. 11.

On December 21, 2017, Petitioner filed, via PECOS, a Medicare enrollment application, which the contractor subsequently approved. CMS Ex. 2. Thus, pursuant to section 424.520(d), the date Petitioner filed his subsequently-approved enrollment application – December 21, 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 No. 2763 at 7.

The issues that are not before me: the deactivation and coverage lapse. As the discussion above shows, the case before me is straightforward. Petitioner, however, complains about the deactivation of his enrollment. He claims that he did not receive the contractor’s development letters, so he could not respond, which led to his deactivation and the significant lapse in coverage. He maintains that the contractor did not follow the rules that were in effect at the time for contacting suppliers.

I simply have no authority to review the deactivation nor to grant him relief based on his equitable claims. Sokoloff, DAB No. 2972 at 6; Ark. Health Grp., DAB No. 2929 at 7-9 and cases cited therein. Nor may I grant Petitioner an earlier effective date based on equitable or policy arguments. Sokoloff, DAB No. 2972 at 9.

Page 5

Conclusion

Because Petitioner filed his subsequently-approved reenrollment application on December 21, 2017, CMS properly granted his Medicare reenrollment effective that date.

• 1I make this one finding of fact/conclusion of law.
• 2CMS’s electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).