Henderson Podiatry, LLC., DAB CR6631 (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, Henderson Podiatry, LLC, is July 23, 2024.

I.     Procedural History

On September 17, 2024, Petitioner requested a hearing to dispute the reactivation effective date for its Medicare billing privileges.  On September 19, 2024, the Civil Remedies Division (CRD) acknowledged receipt of Petitioner’s hearing request, provided the parties with a prehearing submission schedule, and issued my Standing Order.  On October 20, 2024, Petitioner filed a brief (P. Br.).  On October 24, 2024, CMS filed a brief (CMS Br.) and 11 proposed exhibits.  (CMS Exs. 1-11).

II.     Admission of Evidence

I admit all of CMS’s proposed exhibits into the record without objection.  See Standing Order ¶ 10; CRD Procedures § 14(e).

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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 CRD Procedures § 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 CRD Procedures § 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); CRD Procedures § 19(d).

IV.     Issue

Whether July 23, 2024, is the correct effective date for the reactivation of Petitioner’s Medicare billing privileges.

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. Petitioner was enrolled in the Medicare program as a clinic/group practice.  See CMS Ex. 1 at 1.
2. In a March 28, 2024 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 June 30, 2024, 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. 1 at 1.

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3. On May 28, 2024, CMS received a Medicare enrollment application that Petitioner electronically filed in order to revalidate its Medicare enrollment information.  CMS Ex. 2; CMS Ex. 11.
4. In a June 10, 2024 notice, the CMS contractor acknowledged receipt of Petitioner’s revalidation enrollment application.  However, the notice informed Petitioner that it needed to file a CMS-855I revalidation enrollment application within 30 days because both the enrollment for Petitioner and Petitioner’s owner could be revalidated at the same time.  The notice stated that a failure to timely file the correct enrollment application could result in the rejection of Petitioner’s original revalidation enrollment application.  CMS Ex. 3 at 1.
5. In a July 15, 2024 notice, the CMS contractor informed Petitioner that its Medicare billing privileges were being deactivated “because [Petitioner has] not timely revalidated [Petitioner’s] enrollment record with us, or [Petitioner’s] revalidation application has been rejected because you did not timely respond to our requests for more information.  We will not pay any claims after this date.”  CMS Ex. 4 at 1.  The notice advised Petitioner that it could file a rebuttal if Petitioner believed the deactivation was incorrect.  CMS Ex. 4 at 1-2.  Finally, the notice stated that Petitioner could “[r]evalidate [Petitioner’s] Medicare enrollment record” through filing an enrollment application.  CMS Ex. 4 at 2.
6. On July 23, 2024, CMS received a Medicare enrollment application that Petitioner electronically filed in order to revalidate its Medicare enrollment information.  CMS Ex. 5.
7. On August 12, 2024, Petitioner submitted a certification statement for the enrollment application.  CMS Ex. 6.
8. In an August 16, 2024 notice, the CMS contractor returned to Petitioner’s owner a CMS-855I revalidation application because it was “unsolicited” and was “received more than seven months prior to [Petitioner’s] due date.”  CMS Ex. 7.
9. In a second notice dated August 16, 2024, the CMS contractor approved Petitioner’s reactivation enrollment application and advised that Petitioner “will have a gap in billing privileges from July 15, 2024 through July 22, 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. 8 at 1.
10. On or about August 23, 2024, Petitioner requested reconsideration of the effective date for reactivation.  CMS Ex. 9.

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11. On September 11, 2024, the CMS contractor issued an unfavorable reconsideration determination.  CMS Ex. 10.  The CMS contractor upheld the reactivation effective date of July 23, 2024, “but with a gap in the Medicare billing privileges from July 15, 2024 to July 22, 2024.”  CMS Ex. 10 at 4.

VI.     Conclusion of Law

1. The effective date of reactivation for Petitioner’s Medicare billing privileges is July 23, 2024, because CMS received Petitioner’s revalidation enrollment application on July 23, 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 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, CMS argues that I have no authority to review CMS’s decision to deactivate Petitioner’s Medicare billing privileges, and CMS properly set July 23, 2024,

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as Petitioner’s reactivation effective date because July 23, 2024, is the date on which CMS received a reactivation enrollment application that was processed to approval.  CMS Br. at 5.

Petitioner does not dispute that CMS correctly set July 23, 2024, as the reactivation effective date for Medicare billing privileges; however, Petitioner seeks an earlier effective date based on financial hardship.  P. Br. at 1.  Petitioner asserts that deactivation was caused by Petitioner’s termination of its Practice Manager.  P. Br. at 1.  Petitioner states that it was told that it could appeal and show that the gap in Medicare reimbursement will result in a financial hardship.  P. Br. at 2.

I am unable to modify the effective date for reactivation based on Petitioner’s assertion of financial hardship because my jurisdiction is limited to determining whether CMS assigned Petitioner the correct date of reactivation.  See 42 C.F.R. § 498.3(b)(15) (effective date for supplier approval is an appealable initial determination).  As CMS points out, I do not have jurisdiction to review CMS’s decision to deactivate Petitioner’s Medicare billing privileges.  See 42 C.F.R. §§ 424.545(b), 424.546(f) (CMS has the sole authority to consider any rebuttal to the deactivation filed by a supplier); Michael B. Zafrani, M.D., DAB No. 3075 at 3, 8 (2022).

Although Petitioner alleges that an individual at the CMS contractor told Petitioner to file an appeal and explain that the period of deactivation has caused a financial hardship, this is not a legal basis to receive Medicare reimbursement during the period of deactivation.    This is because 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).

VIII.   Conclusion

The effective date for the reactivation of Petitioner’s Medicare billing privileges is July 23, 2024.