Jeffrey M. Ahn, M.D., P.C., DAB CR6629 (2025)

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, Jeffrey M. Ahn, M.D., P.C., is March 11, 2024.

I.      Procedural History

On September 3, 2024, Petitioner requested a hearing before an administrative law judge to dispute the reactivation effective date for its Medicare billing privileges.  Petitioner filed a number of documents in support of the hearing request.

On September 6, 2024, the Civil Remedies Division (CRD) acknowledged receipt of Petitioner’s hearing request, provided the parties with a prehearing submission schedule, and issued copies of my Standing Order and the Civil Remedies Division Procedures (CRDP).  Consistent with the Standing Order, on October 10, 2024, CMS filed a brief/motion for summary judgment and 20 proposed exhibits (CMS Exs. 1-20).

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After Petitioner did not file a prehearing submission, on November 21, 2024, I ordered Petitioner to show cause why I should not dismiss its hearing request.  On December 2, 2024, Petitioner responded that unforeseen matters delayed the filing of a prehearing submission.  Petitioner also refiled its hearing request and stated that it had submitted all of its documents with the initial hearing request.  On December 4, 2024, I discharged the show cause order and accepted Petitioner’s hearing request as its prehearing submission.  On December 4, 2024, CMS notified me that it would not file a rebuttal statement as permitted under the regulations and the Standing Order.

II.      Admission of Evidence

I admit all of CMS’s proposed exhibits into the record without objection.  See Standing Order ¶ 10; CRDP § 14(e).  I also admit three of the supplemental documents submitted with Petitioner’s hearing request, without objection.  Electronic Filing System (E-File) Doc. Nos. 1f through 1h.  I admit only these documents submitted by Petitioner because the others accompanying the hearing request are admitted as CMS exhibits.

III.      Decision on the Written Record

I directed the parties to submit 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(d).  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 March 11, 2024, is the correct effective date for the reactivation of Petitioner’s Medicare billing privileges.

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V.      Jurisdiction

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

VI.     Findings of Fact

1. Prior to 2023, Petitioner was initially enrolled in the Medicare program as a clinic/group practice.  CMS Ex. 1 at 1.
2. In an April 28, 2023 notice, a CMS contractor advised Petitioner that every five years it must revalidate the information in Petitioner’s Medicare enrollment record.  The notice warned Petitioner that a failure to revalidate its enrollment information by July 31, 2023, may result in deactivation of its Medicare billing privileges.  The notice further explained that Petitioner would not be paid for services rendered during the period of deactivation and that this will “cause a gap in your reimbursement.”  CMS Ex. 2 at 1.
3. In an August 23, 2023 notice, the CMS contractor informed Petitioner that it had not revalidated its enrollment record and the contractor was holding payment on Petitioner’s Medicare claims.  The notice again stated that a failure to revalidate would result in deactivation of its Medicare enrollment and that deactivation meant that Petitioner could not be paid for services rendered during the period of deactivation.  CMS Ex. 3 at 1.
4. In an October 10, 2023 notice, the CMS contractor informed Petitioner of the deactivation of Petitioner’s Medicare billing privileges, as of October 5, 2023, because Petitioner did not revalidate its Medicare enrollment record.  The notice advised Petitioner that it had the right to submit a rebuttal if Petitioner thought the deactivation was imposed incorrectly.  CMS Ex. 4 at 1-2.
5. On October 26, 2023, CMS received a Medicare enrollment application that Petitioner electronically filed in order to reactivate its Medicare billing privileges.  CMS Ex. 5.
6. On November 1, 2023, CMS received a signed certification statement from Petitioner’s authorized official.  CMS Ex. 6.
7. In a November 3, 2023 notice, the CMS contractor both acknowledged receipt of Petitioner’s enrollment application and returned/closed that application because the contractor believed that the signature on the certification statement was not an original signature.  CMS Ex. 7.

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8. In a November 7, 2023 email notice, the CMS contractor informed Petitioner that Petitioner was not currently registered with the New York State Education Department (NYSED) Office of Professions as a business entity.  The notice stated that CMS may reject Petitioner’s enrollment application if Petitioner did not submit evidence of registration within 30 days.  CMS Ex. 8.
9. In a December 11, 2023 notice, the CMS contractor informed Petitioner that it rejected Petitioner’s October 26, 2023 enrollment application because Petitioner failed to file the required proof of NYSED registration.  CMS Ex. 9 at 2.
10. On December 12, 2023, CMS received a Medicare enrollment application that Petitioner electronically filed in order to reactivate its Medicare billing privileges.  CMS Ex. 10.
11. In a December 20, 2023 email notice, the CMS contractor informed Petitioner that Petitioner was not currently registered with the NYSED.  The notice stated that CMS may reject Petitioner’s enrollment application if Petitioner did not submit evidence of registration within 30 days.  CMS Ex. 11.
12. In a December 21, 2023 email notice, the CMS contractor informed Petitioner that Petitioner needed to submit a certification statement, the previously requested NYSED registration, and a voided check.  The notice stated that CMS may reject Petitioner’s enrollment application if Petitioner did not submit the requested documents within 30 days.  CMS Ex. 12.
13. In a January 2, 2024 email notice, the CMS contractor informed Petitioner that its NYSED registration was current only through June 30, 2020.  The notice reminded Petitioner that it only had 30 days from the original email notice to provide an updated NYSED registration.  CMS Ex. 13 at 1.
14. In late December 2023 and early January 2024, Petitioner sent emails to NYSED seeking to renew its registration with New York State.  E-File Doc. No. 1_f.
15. On January 17, 2024, Petitioner received an email response from NYSED indicating that it can take many weeks to complete the registration renewal process.  E-File Doc. No. 1_g.
16. In a January 24, 2024 notice, the CMS contractor informed Petitioner that it rejected Petitioner’s December 12, 2023 enrollment application because Petitioner failed to file the required proof of NYSED registration.  CMS Ex. 14 at 2.

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17. In early February 2024, Petitioner and NYSED were in email contact concerning the renewal of Petitioner’s registration.  E-File Doc. No. 1_h.
18. On March 11, 2024, CMS received a Medicare enrollment application that Petitioner electronically filed in order to reactivate its Medicare billing privileges.  CMS Ex. 15.
19. In a March 21, 2024 email notice, the CMS contractor informed Petitioner that Petitioner needed to update its practice location address/payment address.  The notice stated that CMS may reject Petitioner’s enrollment application if Petitioner did not provide the requested information within 30 days.  CMS Ex. 16.
20. In a March 27, 2024 notice of initial determination, the CMS contractor approved Petitioner’s reactivation enrollment application and stated that the effective date for reactivation was March 11, 2024.  The notice advised that Petitioner “will have a gap in billing privileges from October 05, 2023 through March 10, 2024 for failing to fully revalidate during a previous revalidation cycle.  [Petitioner] will not be reimbursed for services provided to Medicare beneficiaries during this time period since [Petitioner was] not in compliance with Medicare requirements.”  CMS Ex. 17 at 2-3.
21. On April 25, 2024, Petitioner requested reconsideration of the effective date for reactivation.  CMS Ex. 18 at 1-2; see also CMS Ex. 19.
22. On July 10, 2024, the CMS contractor issued an unfavorable reconsideration determination.  The reconsidered determination upheld the reactivation effective date of March 11, 2024, and that “services rendered during the timeframe of October 05, 2023 through March 10, 2024 are not subject to reimbursement.”  CMS Ex. 20 at 5.

VI.     Conclusion of Law

1. The effective date of reactivation for Petitioner’s Medicare billing privileges is March 11, 2024, because CMS received Petitioner’s reactivation reenrollment application on March 11, 2024, and a CMS contractor was able to process that application to approval.  42 C.F.R. § 424.540(d)(2).

VII.     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

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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).  If a supplier fails to submit information required by CMS within 90 days of receiving notice from CMS to revalidate, then CMS may deactivate the supplier’s Medicare billing privileges.  42 C.F.R. § 424.540(a)(3).

To reactivate billing privileges, the supplier must recertify that its reenrollment information currently on file with CMS is correct and furnish any missing information.  42 C.F.R. § 424.540(b)(1).  When 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 the present case, Petitioner requests that I modify its effective date for reactivation from March 11, 2024, to December 20, 2023.  Hearing Req. at 2.  Petitioner asserts that it experienced the following delays while trying to revalidate its Medicare enrollment information:  internal communication failures lead to the deactivation; misdirection of CMS’s November 3, 2023 notice to an incorrect address; and NYSED’s lengthy processing time to renew Petitioner’s registration in New York State.  Hearing Req. at 1-2.

I am unable to modify the effective date for reactivation based on Petitioner’s argument.  In this case, CMS received three electronically filed enrollment applications from Petitioner seeking to reactivate its Medicare billing privileges.  However, two of the enrollment applications, i.e., the ones received on October 26, 2023, and December 12, 2023, were both rejected because, in each instance, Petitioner’s registration with NYSED had lapsed and Petitioner failed to provide evidence it renewed the registration within 30 days of receiving notice that such evidence was needed to complete the reactivation enrollment application.  42 C.F.R. § 424.525(a)(2); CMS Ex. 9 at 2; CMS Ex. 14 at 2.  The rejections of those enrollment applications are not subject to appeal.  42 C.F.R. § 424.525(d).  Therefore, because neither of those enrollment applications were processed to approval, they cannot serve as the basis for providing Petitioner with a December 20, 2023 effective date for reactivation.  Chaplin Liu, M.D., DAB No. 2976

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at 8 (2019) (characterizing the holding in Wishon Radiological Med. Grp., Inc., DAB No. 2941 at 7-8 (2019) to mean that “the right to appeal a determination of the effective date does not permit a supplier to also challenge the rejection of an earlier application, and that the effective date cannot be determined by reference to the filing date of an application not subsequently approved by the contractor.”).

The only reactivation enrollment application to be processed to approval was the March 11, 2024 reactivation enrollment application.  CMS Ex. 17 at 2.  Therefore, the effective date for reactivation must be March 11, 2024.  42 C.F.R. § 424.540(d)(2).

Although Petitioner’s regrettable situation appears to be based on internal miscommunication and Petitioner’s failure to realize that it needed to maintain its NYSED registration,1 Petitioner understandably seeks to reduce the period of deactivation so that it may be paid for services provided to Medicare beneficiaries while deactivated.  However, the regulations expressly prohibit CMS from paying Petitioner for any health care items or services provided during the period of deactivation.  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, which CMS did.  See 42 C.F.R. § 498.3(b)(15).

VIII.  Conclusion

The effective date for the reactivation of Petitioner’s Medicare billing privileges is March 11, 2024.