Garden State I D LLC, DAB CR6582 (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, Garden State I D LLC, is January 18, 2024.  I do not have the authority to direct CMS to pay Petitioner for health care items or services provided to Medicare beneficiaries while Petitioner’s Medicare billing privileges were deactivated.

I. Procedural History

On July 5, 2024, Petitioner requested a hearing before an administrative law judge to challenge CMS’s determination that resulted in the lapse of Petitioner’s Medicare billing privileges from November 28, 2023, through January 17, 2024.  On July 9, 2024, the Civil Remedies Division acknowledged receipt of the hearing request and issued copies of my Standing Order and the Civil Remedies Division Procedures (CRDP). 

In compliance with the Standing Order, on August 12, 2024, CMS filed a brief/motion for summary judgment and nine proposed exhibits (CMS Exs. 1-9).  On August 13, 2024, Petitioner filed a letter brief (P. Br.) and no exhibits. 

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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 January 18, 2024, 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 a clinic/group practice that has been enrolled in the Medicare program as a supplier since 2017. CMS Ex. 9 at 1-2.
2. In a June 30, 2023 letter, CMS, through a contractor, advised Petitioner that it 

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2. needed to revalidate its Medicare enrollment record by September 30, 2023. The letter warned that a failure to revalidate by September 30, 2023, might result in the deactivation of Petitioner’s Medicare billing privileges.  The letter explained that, during the period of deactivation, Medicare will not pay Petitioner for services rendered during the period of deactivation.  CMS Ex. 8 at 1.
3. In an October 25, 2023 letter, the CMS contractor informed Petitioner that all payments on Petitioner’s Medicare claims were being held because Petitioner did not revalidate its Medicare enrollment record. The CMS contractor again stated that a failure to revalidate its Medicare enrollment record could result in the deactivation of Petitioner’s Medicare billing privileges.  Also, the CMS contractor warned that Medicare would not pay Petitioner for any services rendered during the period of deactivation.  CMS Ex. 7 at 1.
4. In a November 28, 2023 letter, the CMS contractor advised Petitioner that it was deactivating Petitioner’s Medicare billing privileges as of November 28, 2023, because Petitioner did not timely revalidate its enrollment record. CMS Ex. 6.  The CMS contractor also stated that Petitioner could recover its billing privileges by filing an enrollment application to revalidate its Medicare enrollment information.  CMS Ex. 6 at 2.
5. On January 18, 2024, CMS received a Medicare enrollment application that Petitioner filed to reactivate its Medicare billing privileges. CMS Ex. 5.
6. On February 20, 2024, the CMS contractor approved Petitioner’s reactivation enrollment application. The CMS contractor warned that Petitioner “will have a gap in billing privileges from November 28, 2023 through January 17, 2024 for failing to fully revalidate during a previous revalidation cycle.”  CMS Ex. 4 at 1.
7. On March 28, 2024, Petitioner requested that CMS reconsider the effective date for the reactivation of billing privileges. CMS Exs. 2-3.  
8. On June 12, 2024, the CMS contractor issued a reconsidered determination in which it upheld the January 18, 2024 effective date for the reactivation of Medicare billing privileges. CMS Ex. 1.  

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 

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

The CMS contractor sent Petitioner notice that it needed to revalidate its Medicare enrollment information.  Later, the CMS contractor sent notice that Petitioner had failed to timely revalidate its Medicare enrollment information.  Finally, the CMS contractor deactivated Petitioner’s Medicare billing privileges because Petitioner failed to timely update enrollment information after receiving notice to do so.  42 C.F.R. § 424.540(a)(3). 

There is no evidence that Petitioner exercised its right to file a rebuttal to the deactivation decision.  See 42 C.F.R. §§ 424.545(b), 424.546.  Filing a rebuttal is the only way to  administratively appeal a deactivation.  See 42 C.F.R. § 424.546(f).  Therefore, I have no jurisdiction to determine whether the deactivation was proper. 

2. 2. The effective date for the reactivation of Petitioner’s Medicare billing privileges is January 18, 2024. I have no authority to grant an exception to the effective date regulations. 

Once CMS deactivated Petitioner’s Medicare billing privileges, Petitioner was required to submit an enrollment application to reactivate its Medicare billing privileges.  CMS Ex. 6 at 1; 42 C.F.R. § 424.540(b)(2).  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 Medicare billing privileges on January 18, 2024, and the CMS contractor approved that application.  CMS Ex. 4 at 1.  Therefore, the effective date of reactivation is January 18, 2024. 

Petitioner is primarily concerned by the fact that the deactivation of Medicare billing privileges on November 28, 2023, and the reactivation on January 18, 2024, has created a significant gap in Petitioner’s ability to bill Medicare between those dates.  Petitioner asserts that this gap is causing hundreds, if not thousands, of Petitioner’s Medicare claims 

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to go unpaid.  In turn, this is causing severe financial strain on Petitioner and Petitioner’s owner.  Petitioner indicates that the reason why Petitioner’s owner overlooked the revalidation notices is that there had been a surge of patients needing care at that time.  In addition, Petitioner’s owner is the sole caretaker for two school-age children and elderly parents.  Based on all of these factors, Petitioner requests an exception to the effective date rules and for the reactivation to be changed to November 28, 2023.  P. Br.; CMS Ex. 3 at 9, 12. 

I am sympathetic to Petitioner’s situation; however, I cannot ignore regulations that the Secretary has promulgated.  The regulations require a reactivation effective date of January 18, 2024.  42 C.F.R. § 424.540(d)(2).  Further, I cannot direct CMS to pay Petitioner for health care items or services provided to Medicare beneficiaries during 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).  I only have authority to determine if CMS properly set the date of reactivation.  See 42 C.F.R. § 498.3(b)(15).  In this case, CMS did so. 

VIII.   Conclusion

The effective date for the reactivation of Petitioner’s Medicare billing privileges is January 18, 2024.