Oakland Hills Dermatology PC, DAB CR6619 (2025)

DECISION

The effective date of reactivation of Petitioner’s Medicare billing privileges is September 1, 2023.

I.     Background and Findings of Undisputed Facts

On August 25, 2023, Wisconsin Physicians Service Insurance Corporation, a Medicare administrative contractor (MAC), informed Petitioner that its Medicare billing privileges were deactivated pursuant to 42 C.F.R. § 424.540(a)(4)1 effective August 22, 2023, for

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noncompliance with Medicare enrollment requirements because Petitioner’s National Provider Identifier (NPI)2 was deactivated August 22, 2023.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 25-26.

Petitioner was notified on August 30, 2023, that its NPI was reactivated.  Petitioner’s Exhibit (P. Ex.) A.

Petitioner filed an enrollment application to reactivate its Medicare billing privileges.  CMS Ex. 1 at 11-24.  The enrollment application was received by the MAC on September 1, 2023.  CMS Ex. 1 at 21-24; P. Exs. B-F.

The MAC notified Petitioner by letter dated September 12, 2023, that Petitioner’s initial enrollment application was approved effective September 1, 2023.  CMS Ex. 1 at 8-10.

On September 19, 2023, Petitioner requested a reconsidered determination.  Petitioner explained that its biller accidentally deactivated Petitioner’s billing privileges on August 22, 2023.  Petitioner asked that it be granted a reactivation effective date of August 23, 2023.  CMS Ex. 1 at 7; P. Ex. G.

On November 16, 2023, a MAC hearing officer issued a reconsidered determination upholding the reactivation effective date of September 1, 2023.  CMS Ex. 1 at 1-5; P. Ex. G.

Petitioner requested a hearing before an administrative law judge (ALJ) on November 17, 2023.  On December 18, 2023, CMS filed a motion for summary judgment and prehearing brief with CMS Ex. 1.  Petitioner did not respond and the request for hearing was dismissed on February 6, 2024, for abandonment.  By letter dated February 15, 2024,

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Petitioner requested that its case be reopened on grounds that Petitioner did not intend to abandon its request for hearing and its failure to respond was an administrative oversight.  On February 20, 2024, I ordered CMS to respond to the motion to vacate and that Petitioner respond to CMS’ motion for summary judgment and file its exhibits, witness list, and exhibit list.  CMS filed its response on February 26, 2024.  Petitioner filed its brief (P. Br.) and P. Exs. A through G also on February 26, 2024.  CMS filed a reply on February 28, 2024.  On March 1, 2024, I vacated the prior dismissal and advised the parties that I would proceed with my review.  No objection has been made to my consideration of CMS Ex. 1 and P. Exs. A through G, and all are admitted as evidence.

II.    Issues, Conclusions of Law, and Analysis

1. Issues

Whether I have jurisdiction to review the reconsidered determination by CMS or a MAC of the effective date of reactivation of Medicare billing privileges, which are the right to file claims with and to receive payment from Medicare; and

The effective date of reactivation of Petitioner’s billing privileges.

2. Conclusions of Law and Analysis

My conclusions of law are set forth in bold text followed by my analysis applying the law to the undisputed facts. 

1. Summary judgment is appropriate.

Petitioner is entitled to a hearing on the record before an ALJ under the Social Security Act (Act).  Act §§ 205(b); 1866(h)(1), (j); Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004).  However, when summary judgment is appropriate, no hearing is required.  The Board has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. Part 498.  See, e.g., Crestview Parke, 373 F.3d at 748-51; Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997).  The Board has accepted that Fed. R. Civ. P. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate.  I advised the parties in the Standing Order ¶¶ D and G that summary judgment is an available procedural device and that the law as it has developed related to Fed. R. Civ. P. 56 will be applied.  Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law.  See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 5 (2012) (and cases

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cited therein); Experts Are Us, Inc., DAB No. 2452 at 5 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein).

The undisputed facts set forth above are the facts necessary to resolve this case.  There is no genuine dispute of material fact related to the effective date of the reactivation of Petitioner’s billing privileges.  CMS is entitled to judgment as a matter of law and summary judgment is appropriate.  

2. Petitioner has no right to ALJ review of the determination of the MAC or CMS to deactivate Petitioner’s billing privileges.
3. There is authority for ALJ review in this case, but it is limited to the effective date of reactivation of Petitioner’s billing privileges, i.e., the date of reactivation of Petitioner’s right to submit claims to and receive payment from Medicare for care and services delivered to Medicare-eligible beneficiaries.
4. September 1, 2023, is the effective date of reactivation of Petitioner’s billing privileges as that was the date the MAC received the Medicare enrollment application that it processed to approval.  42 C.F.R. § 424.540(d)(2)

This case involves a gap in Petitioner’s billing privileges that was created when the MAC deactivated Petitioner’s billing privileges, and then reactivated Petitioner’s billing privileges on a later date.  In most cases like this, the real grievance is that CMS and the MAC decline to pay for services rendered to Medicare-eligible beneficiaries during the gap period, even though there is no dispute that Petitioner was enrolled in Medicare during the gap period.  It is significant that Petitioner’s billing privileges were deactivated.  But Petitioner’s Medicare enrollment and billing privileges were not revoked.

The Secretary of the U.S. Department of Health & Human Services (the Secretary) promulgated regulations at 42 C.F.R. Part 424 that establish a process for enrolling providers and suppliers in Medicare.  Pursuant to the regulations, CMS or the MAC may deactivate the billing privileges of an enrolled provider or supplier for any of the eight reasons listed in 42 C.F.R. § 424.540(a).  Pursuant to 42 C.F.R. § 424.540(a)(4), Medicare billing privileges may be deactivated any time a provider or supplier is not in compliance with all requirements to participate in Medicare under Title 42 C.F.R.  Deactivation of billing privileges has no effect on a provider’s or supplier’s “participation agreement or any conditions of participation.”  42 C.F.R. § 424.540(c).  But a provider or supplier may receive no payment from Medicare for items or services provided to a Medicare-eligible beneficiary during the period of deactivation.  42 C.F.R. § 424.540(e).

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A provider or supplier has no right to appeal a CMS or MAC decision to deactivate its billing privileges.  42 C.F.R. § 424.546(f).  A provider’s or supplier’s only recourse when billing privileges are deactivated is to file a rebuttal with the MAC or CMS.  42 C.F.R. §§ 424.545(b), 424.546.

Billing privileges may be reactivated in accordance with 42 C.F.R. § 424.540(b).  CMS may require a deactivated provider or supplier to submit a complete Medicare enrollment application (CMS-855) to reactivate billing privileges.  42 C.F.R. § 424.540(b)(2).  The provider or supplier must recertify the accuracy of its enrollment information, submit any missing information, and certify it complies with all applicable Medicare enrollment requirements.  42 C.F.R. § 424.540(b)(1).

According to 42 C.F.R. § 424.540(d)(2), the effective date of reactivation of billing privileges is the date the MAC or CMS received the Medicare enrollment application that was processed to approval.

The Secretary has not specifically stated that a provider or supplier has a right to ALJ review of CMS or MAC determinations related to the reactivation of billing privileges.  42 C.F.R. §§ 424.545, 498.3(b), 498.5.  However, 42 C.F.R. § 498.3(b)(15) provides that “[t]he effective date of a Medicare provider agreement or supplier approval” is an initial determination subject to review by an ALJ.  The Board has given an expansive interpretation to 42 C.F.R. § 498.3(b)(15) and found a right to ALJ review of the effective date of enrollment in Medicare as well as the effective date of the reactivation of billing privileges.  See, e.g., Victor Alvarez, M.D., DAB No. 2325 at 3-12 (2010) (determination of effective date of enrollment in Medicare is an initial determination subject to ALJ review and Board appeal); Urology Grp. of NJ, LLC, DAB No. 2860 at 6 (2018) (no right to review of a CMS or MAC determination to deactivate billing privileges but right to review of the determination of the effective date of reactivation).

Applying the reasoning of the Board in Alvarez and Urology, I conclude that a supplier has the right to ALJ review of the CMS or MAC determination of the effective date of reactivation of billing privileges.  Furthermore, the only determination of CMS or the MAC that is subject to my review in a provider or supplier enrollment case is the reconsidered determination.  42 C.F.R. § 498.5(l)(1)-(2); Neb Grp. of Ariz. LLC, DAB No. 2573 at 7.

Applying the regulations to the undisputed facts in this case is not complicated.

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The MAC deactivated Petitioner’s billing privileges effective August 22, 2023.  The deactivation occurred because Petitioner’s NPI was deactivated erroneously by Petitioner.3  CMS Ex. 1 at 19, 25-26; P. Br.

On September 1, 2023, Petitioner filed a Medicare enrollment application, and that application was processed to approval by the MAC.  CMS Ex. 1.

By operation of 42 C.F.R. § 424.540(d)(2), the effective date of the reactivation of Petitioner’s Medicare billing privilege must be September 1, 2023, as the regulation grants no discretion to the MAC, CMS, or me to select a different effective date.

Petitioner argues its group NPI was accidentally deactivated through human error and Petitioner immediately acted to have the NPI reactivated.  Despite Petitioner’s best efforts, the NPI was not reactivated more expeditiously.  Petitioner continued to see patients to avoid denying them service due to Petitioner’s clerical error.  Petitioner requests leniency and that I grant Petitioner a reactivation effective date of August 22, 2023.  P. Br. at 1-2.  Petitioner’s arguments are requests for equitable relief.  I have no authority to grant equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010).

III.    Conclusion

For the foregoing reasons, I conclude that the effective date of reactivation of Petitioner’s billing privileges is September 1, 2023.