Jeffrey Lewis, DC / Corpus Christi Chiropractic & Wellness, DAB CR6487 (2024)

DECISION

This decision affirms the determination of Novitas Solutions (Novitas), a contractor for the Centers for Medicare & Medicaid Services (CMS), that the reactivation date of Dr. Jeffrey Lewis/Corpus Christi Chiropractic & Wellness (hereinafter “Petitioner”) Medicare billing privileges is February 1, 2022. 

I.     Background and Procedural History

On December 12, 2022, Petitioner, pro se, timely requested a hearing before an administrative law judge (ALJ) to contest the effective date of his Medicare enrollment.  On December 13, 2022, I issued an acknowledgment letter and standing pre-hearing order (Standing Order), along with a non-discrimination notice and the Civil Remedies Division Procedures (CRDP). 

On January 17, 2023, CMS filed a Motion for Summary Judgment and a pre-hearing brief (CMS Br.), along with 21 exhibits (CMS Exs. 1-21).  CMS did not offer witnesses or provide any sworn declarations.

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Petitioner failed to file a pre-hearing exchange by February 21, 2023, the deadline established in the Standing Order.  An Order to Show Cause was issued on February 23, 2023, ordering Petitioner to show cause by March 9, 2023, as to why the case should not be dismissed. 

On March 10, 2023,  Petitioner filed a prehearing brief (P. Br). 

II.    Admission of Exhibits and Decision on the Record

Neither party offered witnesses, therefore this case will be decided on the written record, without considering whether the standards for summary judgment are satisfied.  CRDP § 19(b). 

Furthermore, in the absence of objections, CMS Exs. 1-21 are admitted into evidence. 

III.   Findings of Fact

The following Findings of Fact are undisputed:  

Petitioner is a Chiropractic Doctor located in Corpus Christi, Texas, enrolled as a supplier in the Medicare program.  Corpus Christi Chiropractic & Wellness is a solely owned group.  CMS Ex. 19 at 1. 

By letter dated June 9, 2020, Novitas Solutions, on behalf of CMS, notified Petitioner that the agency received notice of a change to Petitioner’s bank account which impacted his Medicare payments.  CMS Ex. 1.  Specifically, Novitas was informed that Petitioner’s bank account was closed.  The letter directed Petitioner to immediately complete the Electronic Funds Transfer (EFT) Authorization form (CMS 588).  Id. 

On June 23, 2020, Novitas received a CMS-588 form signed by Office Manager Loriann Yanez, along with a voided check signed by Jeffrey Lewis.  CMS Ex. 2. 

By letter dated June 25, 2020, Novitas acknowledged receipt of Petitioner’s Medicare enrollment application, but noted that the application was incomplete.; CMS Ex. 3 at 1.  The letter noted that Part II of Petitioner’s CMS-588 form did not include the account holder’s address and that the application was not signed by an authorized/delegated official or the individual practitioner.  Id.  The letter warned that failure to submit the requested information within 30 days may result in the rejection of the application.  Id.  Petitioner did not respond to the request.  On July 29, 2020, Novitas issued a notice rejecting Petitioner’s Medicare enrollment application for failure to provide the requested information.  CMS Ex. 4

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Petitioner’s Medicare billing privileges were deactivated on September 10, 2020, because  the CMS-588 form was not submitted within 90 days of the June 9, 2020 notice letter.  CMS Ex. 5. 

On September 30, 2020¹, Novitas received a CMS-588 for Petitioner, this time signed by Office Manager Loriann Atkinson.  CMS Ex. 6. 

By letter dated October 8, 2020, Novitas acknowledged receipt of Petitioner’s enrollment application and informed Petitioner that revisions and additional information was necessary to process the application.  Due to the deactivation of Petitioner’s Medicare billing privileges, Petitioner needed to submit a CMS-855I in order to reinstate the enrollment record.  CMS Ex. 7.  The letter also noted that the signature on the application was not that of an authorized/delegated official, as Dr. Lewis was the only authorized official, and that a voided check was needed to process the application.  Id. 

Petitioner did not provide the revisions or requested information.  As a result, CMS rejected Petitioner’s Medicare enrollment application on November 9, 2020.  CMS Ex. 8. 

Petitioner submitted a Medicare Enrollment Application form CMS-855B on February 1, 2022.  CMS Ex. 9. 

Novitas acknowledged receipt of Petitioner’s application and requested additional information.  Novitas also notified Petitioner that the wrong enrollment application was submitted and directed him to submit the correct form CMS-855I, along with a copy of IRS documentation verifying the Legal Business Name and Employer Identification Number (EIN).  CMS Ex. 10. 

Petitioner submitted a Medicare Enrollment application CMS-855I on February 18, 2022.  CMS. Ex. 11. 

By letter dated March 11, 2022, Novitas acknowledged receipt of the February 18, 2022 application, but noted that the application was incomplete and provided a list of information needed in order to complete the application.  CMS Ex. 12. 

Petitioner submitted the additional information on April 11, 2022.  CMS Ex. 14.  Novitas responded with a request for additional information on April 27, 2022.  Petitioner submitted the requisite information on April 29, 2022.  CMS. Ex. 15, 16.  

By letter dated May 25, 2022, Novitas notified Petitioner that the Change of Information application was approved.  The letter provided November 3, 2021 as the PTAN effective

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date for Dr. Lewis and Corpus Christi Chiropractic & Wellness, which included a 90-day retrospective billing date.  CMS Ex. 17.  

On June 14, 2022, Dr. Lewis requested a timely request for reconsideration of the effective date and asked that it be changed to September 9, 2020, because he did not receive notification that the billing privileges were in jeopardy of deactivation.  CMS Ex. 18 at 1.  

On October 14, 2022, Novitas issued an unfavorable reconsideration decision.  Novitas noted that it erred in providing a 90-day retroactive billing period, and determined that February 1, 2022 was the proper effective date.  CMS Ex. 19 at 4. 

IV.   Jurisdiction

This tribunal has 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). 

V.     Legal Authorities

The Social Security Act (Act) establishes the enrollment process for providers and suppliers participating in Medicare or Medicare related programs.  42 U.S.C. §§ 1302, 1395cc(j).  Under the Act, “suppliers” are physicians or other practitioners, 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).  Providers include hospitals, skilled nursing facilities, and home health agencies.  42 U.S.C. § 1395x(u).  Petitioner is a “supplier.”  42 U.S.C. § 1395x(d); 42 C.F.R. § 400.202. 

A provider or supplier must be enrolled in the Medicare program in order to receive payment for covered items or services from either Medicare (in the case of an assigned claim) or a Medicare beneficiary.  42 C.F.R. § 424.505.  If enrolled, the provider or supplier receives billing privileges and is issued a valid billing number effective for the date a claim was submitted for an item that was furnished or a service that was rendered.  42 C.F.R. § 424.505. 

Once enrolled, CMS may deactivate a provider or supplier’s Medicare billing privileges for any of the reasons listed at 42 C.F.R. § 424.540(a).  If CMS deactivates a supplier’s Medicare billing privileges, then the supplier may file a rebuttal to the deactivation.  42 C.F.R. §§ 424.545(b), 424.546(a)(1).  When CMS issues a determination based on a rebuttal, that determination is not an appealable initial determination.  42 C.F.R. § 424.546(f). 

The determination of a supplier’s effective date is an initial determination subject to ALJ review.  42 C.F.R. § 498.3(b)(15).  However, unlike the determination of a supplier’s

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effective date, “[e]nrollment applications that are rejected are not afforded appeal rights.”  42 C.F.R. § 424.525(d); see 42 C.F.R. § 498.3(b).

VI.    Analysis

Petitioner’s Medicare billing privileges were deactivated for failure to report a change in the bank information supplied on the enrollment application within the timeframe provided.  CMS Ex. 5.  Once Medicare billing privileges are deactivated, the regulations provide that the effective date of reactivation of billing privileges is the date on which the Medicare contractor received the provider’s or supplier’s reactivation submission that was processed to approval by the Medicare contractor.  42 C.F.R. § 424.540(d)(2).  Here, Petitioner filed several applications to reactivate his Medicare billing privileges, however the application that was subsequently processed to approval was submitted on February 1, 2022. 

Though Novitas initially provided a retroactive effective date of November 3, 2021, it was later determined that it was an error to provide a retroactive date of reactivation given the facts and circumstances of this case.  If CMS approves an initial enrollment application, the effective date of enrollment for a physician or nonphysician practitioner may only be the later of two dates:  the date when the practitioner filed an application for enrollment that was subsequently approved by a Medicare contractor charged with reviewing the application on behalf of CMS; or the date when the practitioner first began providing services at a new practice location.  42 C.F.R. § 424.520(d).  An enrolled physician or nonphysician practitioner may retrospectively bill Medicare for services provided to Medicare-eligible beneficiaries up to 30 days prior to the effective date of enrollment if circumstances precluded enrollment before the services were provided, or 90 days if a Presidentially declared disaster precluded enrollment in advance of providing services.  42 C.F.R. § 424.521(a). 

However, when a supplier is seeking to reactivate billing privileges, as Petitioner was, the supplier must recertify that its enrollment information currently on file with CMS is correct, provide any missing information, and be compliant with all applicable enrollment requirements.  42 C.F.R. § 424.540(b).  The effective date of reactivation is the date on which the Medicare contractor received the supplier’s reactivation submission that was processed to approval.  42 C.F.R. § 424.540(d)(2).  The reactivation effective date provision does not provide for a retrospective or retroactive period of billing.  Further, the regulations prohibit CMS from paying a supplier for items or services furnished to Medicare beneficiaries during the period of deactivation.  42 C.F.R. §§ 424.540(e), 424.555(b). 

Petitioner argues that he was deprived of the knowledge of the pending deactivation by his former office manager, Loriann Yanez.  P. RFH.  Petitioner further argues that he was deprived of the knowledge of the actions taken by the former office manager in regards to

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CMS Exs. 3-9, and the actions needed to rectify the matter.  P. RFH.  Though the former employee may have failed to inform Petitioner of the deactivation and correspondence with Novitas, there is no evidence that CMS erred in making the effective date determination.  While Dr. Lewis argues that he had no knowledge of the deactivation, the record shows that all correspondence issued by Novitas was mailed to Petitioner’s address of record.  P. Br.; CMS Ex. 2.  It is undisputed that Petitioner’s office manager(s) received the correspondence regarding the pending and ultimate deactivation.  

While I am sympathetic to Petitioner’s inability to receive reimbursement for services performed while his Medicare billing privileges were deactivated, I do not have the authority to add a period of retrospective or retroactive billing.  See 42 C.F.R. § 498.3(b)(15). 

VII.   Conclusion

For the reasons stated above, I find that Novitas, on behalf of CMS, correctly determined that Petitioner’s reactivation date for Medicare enrollment and billing privileges is February 1, 2022.  Therefore, CMS’s determination is AFFIRMED.

Endnotes

¹  There is a discrepancy in the submission date of the CMS-588 application shown in CMS Ex. 6.  CMS’ brief states that the singed CMS-588 was received on September 30, 2020.  CMS Br. at 2.  However, the signed application is dated October 1, 2020.  CMS Ex. 6.