Southern Idaho Ophthalmology, PLLC, DAB CR6579 (2024)

DECISION

I affirm the determination of the Centers for Medicare & Medicaid Services (CMS) that the effective date for the reactivation of the Medicare billing privileges for Petitioner, Southern Idaho Ophthalmology, PLLC, is December 21, 2023.

I.  Procedural History

On June 19, 2024, Petitioner requested a hearing before an administrative law judge seeking an effective date of December 6, 2023, for the reactivation of Medicare billing privileges.  On June 24, 2024, the Civil Remedies Division (CRD) acknowledged receipt of the hearing request, provided dates for prehearing submissions, and issued copies of my Standing Order and the Civil Remedies Division Procedures (CRDP). 

In compliance with the Standing Order, on July 26, 2024, CMS filed a brief/motion for summary judgment (CMS Br.) and 12 proposed exhibits.  On September 5, 2024, Petitioner sent an email to CRD stating that it did not have additional evidence to submit but requested that I consider the information in the email.  E-Filing System (E-File) Doc. No. 6.

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II.  Admission of Evidence

I admit all of CMS’s proposed exhibits without objection.  See Standing Order ¶ 10; CRDP § 14(e).  

III.  Decision on the Written Record

I directed the parties to submit the written direct testimony for any witnesses they wanted to offer.  Standing Order ¶ 11; see also CRDP § 16(b).  I also informed the parties as follows: 

If the parties either do not file any written direct testimony or the parties do not request to cross-examine any of the witnesses from whom written direct testimony has been submitted, I will consider such actions by the parties to serve as a constructive request for a decision on the written record because there will be no reason to hold an in-person hearing.  

Standing Order ¶ 7(g)(iii); see also CRDP § 19(b).  I further advised:  “Unless a hearing is required for cross-examination of a witness or witnesses, the record will be closed and the case will be ready for a decision after all the submission deadlines have passed.”  Standing Order ¶ 14. 

Neither party submitted written direct testimony from any witnesses and all submission deadlines have passed.  Therefore, I decide this case on the written record.  Anil Hanuman, D.O., DAB No. 3080 at 11-12 (2022); CRDP § 19(d). 

IV.  Issue

Whether December 21, 2023, is the correct effective date for the reactivation of Petitioner’s Medicare billing privileges. 

V.  Jurisdiction

I have jurisdiction to decide the issues in this case.  42 C.F.R. § 498.3(b)(15). 

VI.  Findings of Fact

1. Petitioner is enrolled in the Medicare program as a supplier. 

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2. In a July 27, 2023 letter, CMS, through a contractor, advised that Petitioner needed to revalidate its Medicare enrollment record by October 31, 2023.  CMS Ex. 2.
3. On September 28, 2023, Petitioner mailed a CMS-855B Medicare enrollment application to CMS for the purpose of revalidating its Medicare enrollment.  CMS Ex. 3.
4. In an October 31, 2023 letter, the CMS contractor acknowledged receipt of the enrollment application and requested that Petitioner make a number of revisions to the application by November 30, 2023.  CMS Ex. 4.  One of the needed revisions was to indicate which of Petitioner’s owners or managing employees “had managing control of the supplier.”  CMS Ex. 4 at 2.  The CMS contractor warned:  “We may reject your application(s) if you do not furnish complete information . . . within thirty calendar days of this letter.”  CMS Ex. 4 at 1.
5. On November 9, 2023, Petitioner responded to the CMS contractor and provided additional information related to the enrollment application.  CMS Ex. 5.  Petitioner indicated that Kyle Klinger, M.D., is one of Petitioner’s owners.  CMS Ex. 5 at 11.
6. In a December 6, 2023 letter, the CMS contractor advised it was deactivating Petitioner’s Medicare billing privileges as of December 6, 2023, because Petitioner did not revalidate its enrollment record.  CMS Ex. 6.  The CMS contractor stated that the reason for rejecting Petitioner’s enrollment application was that “CMS requires that someone be marked as Managing Employee” on that application.  CMS Ex. 6 at 1.  The CMS contractor stated that Petitioner had the right to file a rebuttal to the deactivation.  CMS Ex. 6 at 1.  The CMS contractor also stated that Petitioner could recover its billing privileges by filing an enrollment application to revalidate its Medicare enrollment.  CMS Ex. 6 at 2.
7. On December 7, 2023, Petitioner filed a rebuttal challenging the deactivation of its billing privileges.  CMS Ex. 12.
8. On December 19, 2023, Petitioner mailed a new enrollment application to CMS to reactivate its Medicare billing privileges.  CMS Ex. 11.
9. In a December 26, 2023 letter, the CMS contractor acknowledged receipt of that enrollment application from Petitioner on December 21, 2023.  CMS Ex. 7.
10. In a January 17, 2024 letter, the CMS contractor requested that Petitioner make a number of revisions to the enrollment application that Petitioner submitted.  CMS Ex. 8.

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11. On January 17, 2024, Petitioner responded to the CMS contractor and provided additional information related to the enrollment application.  CMS Ex. 9.
12. On February 19, 2024, the CMS contractor approved Petitioner’s enrollment application.  The CMS contractor warned that Petitioner “will have a gap in billing privileges from December 6, 2023 through December 20, 2023 for failing to fully revalidate during a previous revalidation cycle.”  CMS Ex. 10 at 1.
13. In March 2024, Petitioner filed a request that the CMS contractor reconsider the effective date for reactivation of billing privileges.  CMS Ex. 1 at 1.
14. On June 14, 2024, the CMS contractor issued a reconsidered determination in which it upheld:  1) the rejection of Petitioner’s revalidation enrollment application filed in September 2023; 2) the deactivation of Petitioner’s Medicare billing privileges as of December 6, 2023; and 3) the reactivation of Medicare billing privileges on December 21, 2023.  CMS Ex. 1.  The CMS contractor then stated that, “[a]s such, the lapse in coverage from December 6, 2023 to December 20, 2023 shall remain.”  CMS Ex. 1 at 4.

VII.  Conclusions of Law and Analysis

The Social Security Act (Act) authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations governing the enrollment process for providers and suppliers.  42 U.S.C. §§ 1302, 1395cc(j).  A “supplier” includes “a physician or other practitioner, 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).  A supplier must enroll in the Medicare program to receive payment for covered items or services.  42 U.S.C. §§ 1395n(a), 1395u(h)(1); 42 C.F.R. § 424.505.  To enroll, the supplier must submit an enrollment application and provide all required information.  42 C.F.R. § 424.510(a).  To maintain enrollment, a supplier must recertify the accuracy of its enrollment information every five years.  42 C.F.R. § 424.515.  To do this, a supplier “must submit to CMS the applicable enrollment application with complete and accurate information and applicable supporting documentation within 60 calendar days of [CMS’s] notification to resubmit and certify to the accuracy of its enrollment information.”  42 C.F.R. § 424.515(a)(2). 

1. I have no jurisdiction to review or reverse CMS’s decision to reject Petitioner’s revalidation enrollment application.

On September 28, 2023, Petitioner filed an enrollment application to revalidate its Medicare enrollment information.  After giving Petitioner an opportunity to correct flaws in the enrollment application, the CMS contractor concluded that Petitioner failed to fully

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correct those flaws.  As a result, the CMS contractor rejected the enrollment application.  In doing this, the CMS contractor followed the regulatory procedures to reject an enrollment application.  42 C.F.R. § 424.525(a). 

I have no jurisdiction to determine whether the CMS contractor properly rejected the enrollment application because “[e]nrollment applications that are rejected are not afforded appeal rights.”  42 C.F.R. § 424.525(d).  

2. I have no jurisdiction to review or reverse CMS’s decisions to deactivate Petitioner’s Medicare billing privileges.

When the CMS contractor rejected Petitioner’s revalidation enrollment application, Petitioner was deemed to have failed to timely revalidate its enrollment information as required by 42 C.F.R. § 424.515.  The CMS contractor then deactivated Petitioner’s Medicare billing privileges because Petitioner failed to timely update its enrollment information after receiving notice to do so.  42 C.F.R. § 424.540(a)(3). 

Petitioner exercised its right to file a rebuttal to the deactivation decision.  42 C.F.R. §§ 424.545(b), 424.546.  The CMS contractor considered the rebuttal but disagreed with it and upheld the deactivation.  42 C.F.R. § 424.546(d).  The decision to uphold the deactivation “is not an initial determination under [42 C.F.R.] § 498.3(b) . . . and therefore not appealable.”  42 C.F.R. § 424.546(f).  Therefore, I have no jurisdiction to determine whether the deactivation was proper. 

3. The effective date for the reactivation of Petitioner’s Medicare billing privileges is December 21, 2023.

Once CMS rejected Petitioner’s revalidation enrollment application and deactivated Petitioner’s Medicare billing privileges, Petitioner needed to submit a new enrollment application to revalidate and reactivate its Medicare billing privileges.  42 C.F.R. §§ 424.525(c), 424.540(b).  If a supplier seeks reactivation, “[t]he effective date of a reactivation of billing privileges under this section is the date on which the Medicare contractor received the . . . supplier’s reactivation submission that was processed to approval by the Medicare contractor.”  42 C.F.R. § 424.540(d)(2). 

In this case, CMS received Petitioner’s enrollment application to reactivate its Medicare billing privileges on December 21, 2023, and the CMS contractor approved that application.  Therefore, the effective date of reactivation is December 21, 2023. 

Petitioner is primarily concerned by the fact that the deactivation of Medicare billing privileges on December 6, 2023, and the reactivation on December 21, 2023, has created a gap in Petitioner’s ability to bill Medicare between those dates.  I cannot direct CMS to pay Petitioner for health care items or services provided to Medicare beneficiaries during

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the period of deactivation because the regulations expressly prohibit CMS from doing so.  42 C.F.R. §§ 424.540(e), 424.555(b); 86 Fed. Reg. 62,240, 62,359-60 (Nov. 9, 2021); see also Goffney v. Becerra, 995 F.3d 737, 743 (9th Cir. 2021). 

VIII.   Conclusion

The effective date for the reactivation of Petitioner’s Medicare billing privileges is December 21, 2023.