Kathryn K. Valukas, N.P., DAB CR5725 (2020)

DECISION

Petitioner, Kathryn K. Valukas, challenges the determination of her effective date of reactivation by National Government Services (NGS), an administrative contractor for Respondent, the Centers for Medicare & Medicaid Services (CMS). As explained herein, I find NGS correctly established March 26, 2018 as the effective date of reactivation of Petitioner’s Medicare enrollment and billing privileges and therefore affirm CMS’s effective date determination. Consistent with CMS policy, I urge CMS to consider permitting Petitioner to retrospectively bill from February 24, 2018.

I. Background

On July 14, 2017, NGS advised Petitioner she was required to revalidate her enrollment record, including reassignment of her billing to Midwest Infectious Disease, by September 30, 2017. CMS Exhibit (Ex.) 1 at 1, 3. NGS received a revalidation application from Petitioner on September 25, 2017. CMS Ex. 2. On October 18, 2017, NGS wrote Petitioner and asked her to submit additional information for sections 2

Page 2

(practitioner identifying information), 15 (newly signed certification statement), and 17 (copy of all professional degrees, national certifications of evidence of qualifying coursework) of her application by November 17, 2017. CMS Ex. 3.

Petitioner responded on October 25, 2017, providing two copies of her credential and license summary printed from the Wisconsin Department of Safety and Professional Services website, and a print-out of the search result of her name from the U.S. Department of Justice DEA registration validation website. CMS Ex. 4 at 2-8. Petitioner also submitted an enrollment application form in which she provided practitioner identifying information in Section 2 and a Section 15 certification signed on October 19, 2017, with a fax header dated September 20, 2017.1. Id. at 9-35.

On October 30, 2017, NGS requested Petitioner resubmit a Section 15 certification that was “[n]ewly signed and dated,” specifying “[t]he signature must be original copy [and] can’t be copied” as well as a copy of her nursing certification. CMS Ex. 5 (emphasis in original). On November 15, 2017, Petitioner responded by again providing print-outs of her credential/license summary from the Wisconsin Department of Safety and Professional Services website2 and an enrollment application form with the Section 15 certification signed on November 13, 2017. CMS Ex. 6 at 1-2, 6, 33. NGS deactivated Petitioner’s billing privileges effective November 22, 2017 for failing to revalidate her enrollment record. CMS Ex. 7. NGS’s development record indicated it had not received Petitioner’s nursing certification. CMS Ex. 8 at 1.3

On December 13, 2017, NGS received a CMS-855I individual enrollment application from Petitioner to reactivate her billing privileges. CMS Ex. 9. Petitioner included a copy of her actual certificate from the Wisconsin Department of Safety and Professional Services Board of Nursing, as well as a copy of her Master of Science in Nursing degree.

Page 3

Id. at 32-33. On December 28, 2017, NGS asked Petitioner to submit a CMS-855R in its entirety (presumably to permit reassignment of her billing when her individual enrollment was reactivated), as well as her nurse practitioner certification. CMS Ex. 10. On January 18, 2018, Petitioner submitted the requested CMS-855R application. CMS Ex. 11. On February 5, 2018, NGS denied both the CMS-855R and the CMS-855I applications. CMS Ex. 12. According to NGS’s development notes, Petitioner had submitted an “incorrect version” of the CMS-855R,4 and NGS therefore rejected both applications. CMS Ex. 13.

On March 26, 2018, NGS received CMS-855I reactivation and CMS-885R reassignment applications from Petitioner. CMS Ex. 14. On April 11, 2018, NGS requested that Petitioner correct her CMS-855I with the following guidance: Section 2 practitioner identifying information (“YOU MARKED [] PROVIDER WAS A PHYSICIAN [,] PROVIDER IS A NON PHYSICIAN. PLEASE MARK NURSE PRACTITIONER IN SECTION 2D2.”); Section 15 certification statement (“[n]ewly signed and dated”); and Section 17 supporting documents (“PROVIDE COPY OF THE[] NP CERTIFICATION ANCC.”). CMS Ex. 15 (emphasis in original).

On April 24, 2018, Petitioner faxed the requested information. CMS Ex. 16. NGS approved Petitioner’s reactivation application on May 1, 2018, resulting in an effective date of March 26, 2018 and a billing gap from November 22, 2017 through March 25, 2018. CMS Ex. 17.

Petitioner asked NGS to reconsider its decision, and on August 3, 2018, NGS issued a reconsidered determination upholding its initial determination of her effective date of reactivation. CMS Ex. 19. NGS observed Petitioner “is fully responsible for the accurate, timely completion of her own revalidation. Therefore, if she certified (via her signature on the application) that another individual would be completing the revalidation on her behalf, she was still responsible for the outcome of the submission(s).” Id. at 2. In summarizing the relevant application history, NGS took note of the initial revalidation application received on September 25, 2017 as well as the application it received on March 26, 2018 from Petitioner. Id. at 1-2.

NGS’s reconsidered determination makes no mention of the application Petitioner submitted after her deactivation that NGS received on December 13, 2017. CMS Ex. 19. Nor does NGS explain why it rejected Petitioner’s reactivation application simply because she had submitted an outdated or incorrect version of the reassignment

Page 4

application it requested from her. On October 1, 2018, Petitioner timely sought hearing in the Civil Remedies Division before an administrative law judge (ALJ), and I was designated to hear and decide this case.

On October 5, 2018, I issued an Acknowledgment and Pre-hearing Order (Pre-hearing Order) requiring each party to file a pre-hearing exchange and supporting documents. CMS timely filed a Combined Pre-hearing Brief and Motion for Summary Judgment (CMS Br.) along with an exhibit list and 19 proposed exhibits (CMS Exs. 1-19). Petitioner did not timely file her pre-hearing submissions, and I therefore issued an Order to Show Cause (OSC) requiring Petitioner to file her pre-hearing exchange and explain her failure to do so.

Petitioner filed her response to the OSC on December 27, 2018, explaining she had not filed anything “because CMS had already sent all [her] Medicare applications and notifications” and she did not think she needed to submit these documents. DAB E-file Dkt. No. C-19-17, Doc. No. 7. With her response, Petitioner filed 15 supporting documents/exhibits and a separate document described as a “Timeline of Events.” DAB E-file Dkt. No. C-19-17, Doc. Nos. 8-10, 10a-m. Because Petitioner submitted her pre hearing exchange and indicated she did not intend to abandon her case, I discharged the OSC on December 27, 2018.

On January 4, 2019, Petitioner filed a letter explaining that she had legally changed her name following her marriage,5 which required her to revise her professional licenses. DAB E-file Dkt. No. C-19-17, Doc. No. 12. Petitioner explained that she relied on Edgemed, her billing agent, to complete the Medicare revalidation process, but was unaware that documents were not timely provided as requested, even though she had “responded to Edgemed in a timely manner and trusted that the credentialing [would] be completed on time and correctly.” Id. She concedes that “ultimately, I am fully responsible for the accurate timely completion of my own revalidation, and perhaps, I should have been more involved by making sure accurate information was being provided on time to Medicare.” Id.

II. Decision on the Written Record and Admission of Exhibits

Petitioner did not object to the exhibits offered by CMS. I admit CMS Exs. 1-19 into evidence. CMS filed Objections to Petitioner’s Proposed Exhibits (CMS Objections) on January 11, 2019. CMS objected to all of Petitioner’s exhibits on the grounds of

Page 5

foundation and authenticity, claiming the documents were marked up or altered (Doc. No. 10g at 1, 10-15), or were missing pages (Doc. Nos. 10e and 10m), making them inauthentic copies of the original documents. CMS Objections at 1.

Though I do not agree Petitioner substantially altered any of these documents such that I would question their authenticity, I otherwise sustain CMS’s objections to Petitioner’s unnumbered exhibits because they were already proffered by CMS in its own exchange and are therefore duplicative. See Civ. Remedies Div. P. § 14(a). I therefore exclude Doc. Nos. 10, 10a-e, and 10g-m. I accept into evidence Doc. No. 10f, the July 26, 2018 letter from NGS acknowledging receipt of Petitioner’s June 29, 2018 reconsideration request, because it is relevant and non-duplicative.

CMS also objected to DAB E-file Dkt. No. C-19-17, Doc. No. 9 (“Timeline of Events”), contending this document is new documentary evidence which Petitioner has not given good cause for submitting. CMS Objections at 2. This objection is plainly without merit and overruled. This document is not new evidence but instead Petitioner’s characterization of the facts in the record before me and thus constitutes arguments made by a party, not new evidence.

Neither party offered written direct testimony of any witness as part of its pre-hearing exchange, meaning an in-person hearing is not necessary. Pre-hearing Order ¶¶ 8-10; Civ. Remedies Div. P. §§  16(b), 19(b). Therefore, I will decide this case on the record based on the parties’ written submissions and arguments. Civ. Remedies Div. P. § 19(d). CMS’s motion for summary judgment is denied as moot.

III. Issue

The issue in this case is whether NGS, acting on behalf of CMS, properly established March 26, 2018 as the effective date of reactivation for Petitioner’s Medicare billing privileges.

IV. Jurisdiction

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

Page 6

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

A. Applicable Law

1. Enrollment

Petitioner participates in the Medicare program as a “supplier” of services. Social Security Act (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 Medicare 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. 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” of 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). In this case, the date of filing of Petitioner’s subsequently-approved enrollment application is relevant. CMS may 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 its 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, the supplier must submit an appropriate enrollment application with complete and accurate information and supporting documentation. 42 C.F.R. § 424.515(a)(2).

Page 7

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 “furnish complete and accurate information and all supporting documentation within 90 calendar days of receipt of notification from CMS to submit an enrollment application and supporting documentation, or resubmit and certify to the accuracy of its enrollment 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).

4. Reactivation

The reactivation of an enrolled 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. Analysis

1. Petitioner filed a subsequently approved revalidation application on March 26, 2018, and the effective date of its Medicare enrollment can be no earlier than that date.

The effective date for Medicare billing privileges 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).

Although Petitioner clearly made several attempts to submit a revalidation application and provided responses to NGS’s requests for development, see CMS Exs. 2, 4, 6, 9, 11, 14, 16, the earliest application in the record before me that NGS received and subsequently approved is the enrollment application it received on March 26, 2018. CMS Ex. 19. Petitioner does not dispute the receipt date of this revalidation application.

Page 8

Timeline of Events at 2. Nor does she point to an earlier application NGS received that it successfully processed to approval. See, e.g., CMS Ex. 18; Timeline of Events. Therefore, pursuant to 42 C.F.R. § 424.520(d), the earliest date Petitioner filed an enrollment application that was subsequently approved – March 26, 2018 – is the effective date of enrollment. Urology Grp. of NJ, LLC, DAB No. 2860 at 7-9 (2018); Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017).

2. I have no authority to review NGS’s decision to reject Petitioner’s earlier applications or deactivate Petitioner’s billing privileges.

It is clear from the record before me that Petitioner through her agents earnestly if imperfectly sought to revalidate her enrollment in the Medicare program beginning in July 2017, and despite repeated efforts to do so, was unsuccessful. CMS Exs. 2, 4, 6, 9, 11, 14, 16. Equally clear – and disconcerting – is the fact that in its reconsidered determination, NGS discussed Petitioner’s first application submitted in September 2017, as well as her third application, submitted in March 2018, but makes no mention at all of Petitioner’s December 2017 application. CMS Ex. 19.

NGS’s reasons for denying this application are therefore entirely opaque. The basis proffered by CMS counsel – that Petitioner submitted an older version of the CMS-855R application requested by NGS along with her individual reactivation application – appears nowhere in the record. And absent citation to CMS guidance or some other authority, CMS has failed to explain why NGS could not have processed Petitioner’s individual reactivation application to approval while rejecting her reassignment application. It is possible this course of action is consistent with the regulations and agency guidance, but CMS has failed to enlighten me – and more importantly – Petitioner, who is entitled, at bare minimum, to an articulated reason for denial of all her applications.

But however problematic I find the reconsidered determination’s failure to discuss the relevant facts, I have no authority to review NGS’s denials of Petitioner’s earlier applications, as they are not initial determinations under 42 C.F.R. § 498.3(b) subject to ALJ review.6 The regulations explicitly state that rejected enrollment applications may not be appealed. 42 C.F.R. § 424.525(d); see also James Shepard, M.D., DAB No. 2793 at 8 (2017) (providing 42 C.F.R. § 424.525(d) “plainly prohibits” ALJ review of a rejected application because there are no appeal rights for such a determination).

Similarly, I have no authority to review NGS’s decision to deactivate Petitioner’s enrollment after she did not revalidate her Medicare enrollment within the timeframe

Page 9

prescribed by NGS’s July 14, 2017 revalidation request. Like the denial of an enrollment application, deactivation of a supplier’s billing privileges is not an appealable initial determination.7 Goffney, DAB No. 2763 at 3-5.

3. I have no authority to consider Petitioner’s equitable arguments.

Petitioner asserts that she did not timely submit the requested information because the employee assigned to work on her revalidation lacked sufficient experience, needed more time to gather documentation of Petitioner’s name change, and was responsible for mistakenly faxing her signature, instead of mailing an original version as instructed by NGS. CMS Ex. 10; CMS Ex. 11; CMS Ex. 16 at 7; CMS Ex. 18 at 3; Timeline of Events at 1. In short, she contends she “should not be penalized by losing the payments for services that I provided to my patients (for a 4 month period) because of [her agent’s] lack of knowledge and training.” CMS Ex. 18 at 3.

I am sympathetic to Petitioner’s situation, but while Petitioner may reasonably assert she was not at fault for the errors made by her agents, and that she provided honest services to Medicare program beneficiaries for which she deserves to be compensated, I have no authority to grant Petitioner equitable relief. See, e.g., 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.”); Pepper Hill Nursing & Rehab. Ctr., LLC, DAB No. 2395 at 11 (2011) (holding that the ALJ and Board were not authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements); Pepper Hill Nursing & Rehab, DAB No. 2632 at 19 (2015) (providing the Board may not overturn denial of provider enrollment in Medicare on equitable grounds).

Ultimately, my jurisdiction is limited to reviewing CMS’s determination of the effective date of Petitioner’s enrollment application under 42 C.F.R. § 424.520(d). As I have explained, NGS properly selected March 26, 2018 as the effective date of Petitioner’s reactivation enrollment. Therefore, the effective date of March 26, 2018 must stand.

4. CMS should consider granting Petitioner 30 days of retrospective billing.

Finally, I note that the version of the Medicare Program Integrity Manual (MPIM) in effect at the time of NGS’s initial and reconsidered determinations did not specifically address how to apply retrospective billing in the context of reactivation. CMS Pub. 100-

Page 10

08, ch. 15, § 15.27.1.2 (rev. 561, eff. Mar. 18, 2015). In March 2019, while this matter was pending before me, CMS clarified its guidance to contractors, stating that they were required to afford any supplier re-enrolled following deactivation, like Petitioner, up to 30 days of retrospective billing privileges. MPIM, ch. 15, § 15.27.1.2 (rev. 865, eff. Mar. 12, 2019) (“Contractors shall grant retrospective billing privileges in accordance with Section 15.17(B) for reactivating provider and suppliers . . . . This includes providers that were deactivated for not responding to a revalidation request.” (emphasis added)).

Thus, had Petitioner’s reactivation application been received after March 12, 2019, she would have automatically received 30 days of retrospective billing. A contrary outcome based solely on the date of Petitioner’s reactivation seems arbitrary and unjust. I counsel CMS to consider exercising its discretion in this matter in favor of an otherwise honest biller who did not seek to defraud the Medicare program and provide her the 30 days of retrospective billing any similarly situated supplier would now receive.

VI. Conclusion

For the reasons explained above, I affirm CMS’s determination that March 26, 2018, is the effective date of reactivation of Petitioner’s Medicare enrollment and billing privileges.

 

• 1This faxed certification page is the same one provided in Petitioner’s initial application received by NGS on September 25, 2017; both pages contain the same fax header: “Wheaton – VC1 9/20/2017 9:16:47 AM.” Compare CMS Ex. 4 at 35, with CMS Ex. 2 at 29. Petitioner appears to have signed and dated this signature page on multiple occasions at different times. Id. The lack of original signature appears to be one of the reasons NGS did not accept Petitioner’s initial application.
• 2Petitioner submitted print-outs of her credential and license summary from the Wisconsin Department of Safety and Professional Services website in response to NGS’s October 18 and October 30, 2017 development requests. CMS Ex. 4 at 6-7 (two unique license numbers for registered nurse and advanced practice nurse prescriber in Petitioner’s maiden name “Kathryn K Suhr”); CMS Ex. 6 at 6 (advanced practice nurse prescriber credential and license summary from the Wisconsin Department of Safety and Professional Services in Petitioner’s maiden name “Kathryn K Suhr”).
• 3CMS cursorily explains in its brief that Petitioner’s submission of a summary of her licensure status printed from the licensing board’s website was insufficient, and that NGS apparently required a copy of her actual certification, which she eventually provided. CMS Br. at 4, citing CMS Ex. 4 at 6; CMS Ex. 16 at 7.
• 4CMS explains in its brief that the application submitted by Petitioner was “outdated,” but provides no basis for that assertion. CMS Br. at 4. I note here that CMS counsel unhelpfully cites “CMS Exs. 9-13” for this proposition. Id. Blanket reference to ranges of exhibits without benefit of pin citation is hardly best practice in legal briefing. CMS counsel would serve her client better by avoiding such haphazard citation practices, endemic throughout her brief, in future cases before me.
• 5Prior to December 13, 2017, NGS’s correspondence and Petitioner’s credentialing and licensing documentation refer to her as Kathryn Suhr. CMS Exs. 1-8. Petitioner first refers to herself as Kathryn K. Valukas in her December 13, 2017 CMS-885I reactivation application and thereafter. CMS Ex. 9; see also CMS Ex. 16. It does not appear NGS denied her applications during the relevant period on the basis of that name change.
• 6CMS may wish to more closely examine the facts behind NGS’s denial of Petitioner’s December 2017 individual enrollment application merely for submitting an older version of a reassignment application.
• 7Deactivation decisions in fact have a separate review process that requires a provider or supplier dissatisfied with their deactivation to file a rebuttal with CMS’s administrative contractor. 42 C.F.R. § 424.545(b). It is not clear from the record whether Petitioner sought relief through the rebuttal process.