Renal Associates, P.A., DAB CR6572 (2024)

DECISION

Petitioner Renal Associates, P.A., is a medical practice group located in San Antonio, Texas.  After the Medicare contractor deactivated Petitioner's Medicare billing privileges, the practice submitted a new application, seeking to reactivate its enrollment.  The Centers for Medicare & Medicaid Services (CMS) granted the application, effective April 15, 2024.  As a result, Petitioner's Medicare coverage lapsed from April 4 until April 15, 2024.  Here, Petitioner maintains that the deactivation was a mistake and asks for an earlier effective date.

Because Petitioner filed its subsequently-approved reactivation application on April 15, 2024, April 15 is the earliest possible effective date.  See 42 C.F.R. § 424.540(d)(2).

I have no authority to review the deactivation nor to order retrospective reimbursement for services provided during the period of deactivation.

Background

In a notice dated April 22, 2024, the Medicare contractor, Novitas Solutions, advised Petitioner that the contractor approved its reactivation enrollment application with an effective date of April 15, 2024.  CMS Ex. 3.

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Petitioner requested reconsideration.  CMS Ex. 4.  In a reconsidered determination, dated July 11, 2024, a contractor hearing specialist affirmed the April 15, 2024 effective date.  CMS Ex. 5.

Petitioner appeals, and the matter is now before me.

CMS moves for summary judgment.  However, because neither party proposes any witnesses, an in-person hearing would serve no purpose.  See Acknowledgment and Pre-hearing Order at 4, 6 (¶¶ 4(c)(iv), 10) (July 24, 2024)).  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 five exhibits (CMS Exs. 1-5).  Petitioner submits its brief (P. Br.) with five exhibits (P. Exs. 1-5).  In the absence of any objections, I admit into evidence CMS Exs. 1-5 and P. Exs. 1-5.  See Acknowledgment and Pre-hearing Order at 5 (¶ 7).

Discussion

1. On April 15, 2024, Petitioner filed its subsequently-approved Medicare enrollment application, and the effective date of its enrollment can be no earlier than that date.  42 C.F.R. § 424.540(d).1

Enrollment.  Petitioner Renal Associates participates in the Medicare program as a "supplier" of services.  See Social Security Act § 1861(d); 42 C.F.R. § 498.2.  To receive Medicare payments for the services furnished to program beneficiaries, a supplier must enroll in the program.  Act §§ 1834(j), 1835(a); 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

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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 organization submitting a new enrollment application, 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).  However, because this case involves re-enrollment after a deactivation, other regulations apply.

Re-enrollment following deactivation.  The regulations governing re-enrollment after a deactivation differ in significant ways from the enrollment regulations.  See 86 Fed. Reg. 62,240, 62,359-60 (Nov. 9, 2021).

CMS may deactivate a supplier's billing privileges if the supplier voluntarily withdraws from Medicare (and for other reasons).  42 C.F.R. § 424.540(a)(7); see 42 C.F.R. § 424.555(b).  To reactivate its billing privileges, the supplier must recertify that its enrollment information currently on file with Medicare is correct, furnish any missing information, as appropriate, and comply with all applicable enrollment requirements.  42 C.F.R. § 424.540(b)(1).  CMS may also require that a deactivated supplier submit a complete enrollment application.  42 C.F.R. § 424.540(b)(2).  The effective date of reactivation of billing privileges is the date on which the Medicare contractor received the supplier's submissions that were processed to approval.  42 C.F.R. § 424.540(d)(2).

Here, in a notice letter, dated April 9, 2024, the contractor advised Petitioner that its Medicare billing privileges were being deactivated, effective April 4, 2024, pursuant to 42 C.F.R. § 424.540(a)(4).  CMS Ex. 1 at 1.  Section 424.540(a)(4) authorizes the contractor to deactivate a supplier's Medicare billing privileges if the supplier does not comply with all enrollment requirements.  In this regard the notice letter appears to be incorrect.  No evidence suggests that the practice did not comply with enrollment requirements.  Rather, the evidence shows that the practice voluntarily (albeit mistakenly) withdrew from the program.  P. Ex. 1.

According to Petitioner, when a physician left the practice, the physician's practice manager intended to deactivate only that physician's billing privileges.  Instead, she inadvertently deactivated the entire practice.  P. Br. at 1.  It thus appears that the deactivation was "voluntary" (although not intentional), pursuant to 42 C.F.R. § 424.540(a)(7).  Moreover, assuming that the practice manager was not authorized to deactivate the entire practice, I agree that the contractor could (and probably should) have allowed Petitioner to correct the error.  However, I have no authority to review a deactivation.  Iowa Cancer Specialists, PC, DAB No. 3109 (2023); Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 at 6 (2019); Ark. Health Grp., DAB No. 2929 at 7-9 (2019).3

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Nor may I direct the contractor to allow retrospective reimbursement, which would cover Petitioner's significant financial losses.4  A supplier may not receive payment for services or items furnished while deactivated.  42 C.F.R. § 424.540(e); 42 C.F.R. § 424.555(b).  This represents a departure; CMS previously permitted retrospective billing after reactivation.  In promulgating the new regulation, the Secretary explained the change:

After careful reflection . . . the most sensible approach from a program integrity perspective is to prohibit such payments altogether.  In our view, a provider or supplier should not be effectively rewarded for its non-adherence to enrollment requirements (for example, failing to respond to a revalidation request or failing to timely report enrollment information changes) by receiving payment for services or items furnished while out of compliance.

86 Fed. Reg. at 62,359-60.

Conclusion

Because Petitioner filed its subsequently-approved reactivation application on April 15, 2024, April 15 is the earliest possible effective date.  See 42 C.F.R. § 424.540(d)(2).

I may not review the deactivation.

Retrospective reimbursement is not available for those whose enrollment has been deactivated.  42 C.F.R. § 424.540(e).