David Leventer, DAB CR6620 (2025)

DECISION

Petitioner, David Leventer, is a physician, practicing in Lakewood, New Jersey.  NJ Eye Consultants is his medical practice.  After the Medicare contractor deactivated his Medicare billing privileges, Petitioner Leventer submitted a new application, seeking to reactivate his enrollment.  Acting on behalf of the Centers for Medicare & Medicaid Services (CMS), the contractor approved the application, with an effective billing date of June 30, 2024.  As a result, Petitioner’s Medicare coverage lapsed from May 24 through June 29, 2024.

Petitioner has challenged the deactivation, claiming that it was improper because he received only one of several notice letters sent to him and his practice advising that he needed to revalidate their Medicare enrollments.

Because Petitioner filed his subsequently-approved reactivation application on June 30, 2024, June 30 is the earliest possible effective date for his Medicare reactivation.  See 42 C.F.R. § 424.540(d)(2).

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

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Background

The Medicare contractor, Novitas Solutions, has approved Petitioner’s reactivation enrollment application with a gap in billing privileges from May 24 through June 29, 2024.  CMS Ex. 10.  Petitioner requested reconsideration, asserting that he had not received notices advising him to update his information.  CMS Ex. 11 at 3.  In a reconsidered determination, dated September 12, 2024, a contractor hearing specialist affirmed the June 30, 2024 reactivation date.  CMS Ex. 13 at 3.

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) (November 13, 2024); Civil Remedies Division Procedures § 16(b); Vandalia Park, DAB No. 1940 (2004).  I may therefore decide this case based on the written record, without considering whether the standards for summary judgment are satisfied.1

CMS submits its motion and brief (CMS Br.) with 13 exhibits (CMS Exs. 1-13).  In the absence of any objections, I admit into evidence CMS Exs. 1-13.  See Acknowledgment and Pre-hearing Order at 5 (¶ 7).  Petitioner submitted a brief in response (P. Br.).

Discussion

1. On June 30, 2024, Petitioner filed his subsequently-approved Medicare reactivation application, and the effective date of his reactivation can be no earlier than that date.  42 C.F.R. § 424.540(d)(2).2

Enrollment.  Petitioner Leventer and his practice participate in the Medicare program as “suppliers” of services.  See Social Security Act (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;

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3) identify and confirm a supplier’s owners and practice location; and 4) grant the supplier Medicare billing privilege.  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. § 424.502.3  When CMS determines that a prospective supplier meets the applicable enrollment requirements, it grants Medicare 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 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 “the date that the supplier first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d) (emphasis added).

Because this case involves re-enrollment after a deactivation, additional 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).

To maintain its billing privileges, a supplier must resubmit and recertify the accuracy of its enrollment information every five years.  42 C.F.R. § 424.515.  CMS may also perform off-cycle revalidations at any time.  42 C.F.R. § 425.515(d).  Within 60 days of receiving CMS’s notice, the supplier must submit the applicable enrollment application and supporting documentation.  42 C.F.R. § 424.515(a)(2).  CMS may deactivate a supplier’s billing privileges if the supplier does not furnish complete and accurate information and all supporting documentation within 90 calendar days of receiving CMS’s request that it do so.  42 C.F.R. § 424.540(a)(3).

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).

Petitioner’s deactivation and re-enrollment.  Here, in a letter dated January 31, 2024, addressed to NJ Eye Consultants, the contractor directed the practice to revalidate its

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Medicare enrollment records no later than April 30, 2024, and cautioned that if it failed to respond, the contractor could stop its Medicare billing privileges.  CMS Ex. 1.  The letter was sent to the practice’s street address, and Petitioner admits that he received it.  P. Br. at 2.

In response, Petitioner submitted the practice’s enrollment application.

In a letter dated April 19, 2024, the contractor advised Petitioner Leventer that it had received the enrollment application, and, noting that Petitioner Leventer is the practice’s sole owner, it asked that he submit his own revalidation application (CMS-855I) through the PECOS system.  The contractor also asked for Petitioner’s DEA (Drug Enforcement Administration) number, if he had one.  The letter warned his failing to provide the requested information would cause the application to be rejected.  CMS Ex. 2 at 1-2.  The contractor mailed the letter to Petitioner’s post office box and sent a copy to his email address.  CMS Exs. 2, 3.  Petitioner had earlier provided these addresses to the contractor.  See CMS Ex. 6 at 2.

Petitioner did not respond and now maintains that he did not receive this letter, although he does not claim that the addresses to which they were sent were incorrect.  P. Br. at 2-3.

In a letter dated May 24, 2024, the contractor advised Petitioner Leventer that his Medicare billing privileges were deactivated, effective May 24, 2024, pursuant to 42 C.F.R. § 424.540(a)(3).  CMS Ex. 4.  Section 424.540(a)(3) authorizes the contractor to deactivate a supplier’s Medicare billing privileges if the supplier does not comply with all enrollment requirements.  Although the letter was again sent to the mailing and email addresses on file, CMS Exs. 4, 5, Petitioner denies receiving it.  P. Br. at 3-4.

On June 30, 2024, the Medicare contractor received Petitioner’s reactivation submission that it processed to approval.  CMS Exs. 6, 8, 10.  June 30 is therefore the effective date for reactivating Petitioner’s billing privileges.  See 42 C.F.R. § 424.540(d)(2).

Petitioner argues that the contractor should not have deactivated his billing privileges because he did not receive the April 19 and May 24 notice letters.  P. Br. at 5-6.  However, I have no authority to review a deactivation.  Michael B. Zafrani, M.D., DAB No. 3075 at 3, 8 (2022); Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 at 6 (2019); Wishon Radiological Med. Grp., Inc., DAB No. 2941 at 6-7 (2019); Ark. Health Grp., DAB No. 2929 at 7-9 (2019); James Shepard, M.D., DAB No. 2793 at 8 (2017).

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

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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. 62,240, 62,359-60 (Nov. 9, 2021); see Zafrani, DAB No. 3075 at 2 n.1.

Conclusion

Because Petitioner Leventer filed his subsequently-approved reactivation application on June 30, 2024, June 30 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).