Miller Health and Wellness, Inc., DAB CR6729 (2025)

DECISION

Petitioner, Miller Health and Wellness, Inc., is a medical practice, located in Tulsa, Oklahoma, that is owned and operated by Ruth Miller, D.O.  After the Medicare contractor deactivated the practice's Medicare billing privileges, Petitioner submitted a new application, seeking to reactivate its enrollment.  Acting on behalf of the Centers for Medicare & Medicaid Services (CMS), the Medicare contractor approved the application, with a reactivation effective date of October 25, 2024.  As a result, Petitioner's billing privileges lapsed from July 3 through October 24, 2024.

Petitioner challenges the deactivation, claiming that it did not receive, from the Medicare contractor, notice that it was required to revalidate its Medicare enrollment.  Petitioner asks that the lapse in billing privileges be rescinded.

Because Petitioner filed its subsequently-approved reactivation application on October 25, 2024, October 25 is the earliest possible effective date for its 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 provided during the period of deactivation.

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Background

The Medicare contractor, Novitas Solutions, approved Petitioner's reactivation enrollment application, effective October 25, 2024.  CMS Exhibit (Ex.) 6.  Thereafter, Petitioner requested reconsideration.  CMS Ex. 1.  In a reconsidered determination, dated February 4, 2025, a contractor representative affirmed the October 25, 2024 effective date.  CMS Ex. 7.

Petitioner appealed, and the matter is now before me.

CMS moves for summary judgment.  However, I need not consider whether summary judgment is appropriate.

CMS proffers no witnesses.

Although Petitioner submits a written declaration from the practice's owner, Ruth Miller, D.O., CMS has not asked to cross-examine her.  See Acknowledgment and Pre-Hearing Order at 4, 5, 6 (¶¶ 4(d)(iv), 8, 9, 10) (April 7, 2025).  Because there are no witnesses to be examined or cross-examined, an in-person hearing would serve no purpose.  Pre-Hearing Order at 6 (¶ 10).  I may therefore decide this case based on the written record, without considering whether the standards for summary judgment are satisfied.

CMS submits its motion and brief (CMS Br.) with seven exhibits (CMS Exs. 1-7).  In the absence of any objections, I admit into evidence CMS Exs. 1-7.  See Pre-Hearing Order at 5 (¶ 7).

Petitioner submits its argument in response (P. Br.) with eight exhibits (P. Exs. 1-8).  Seven of Petitioner's eight exhibits (P. Exs. 1-7) , however, duplicate CMS's exhibits.  Admitting them would serve no purpose because the documents are already in the record.

Petitioner's remaining exhibit, P. Ex. 8, presents additional problems.  Petitioner identifies the document as "Dr. Miller Revalidation Application paperwork."  P. Br. at 4.  Petitioner does not explain how the document is relevant and material to this case and does not cite to it in any of its submissions.1  And, in fact, the document doesn't seem to have anything to do with the matter before me.  It lists a different legal business name, "Fort Worth Primary Care PLLC," instead of "Miller Health and Wellness, Inc."; and a different National Provider Identifier (NPI), "1417458068," instead of "1063605863."  The "date received" (11/25/2024) is not the date the contractor received Petitioner's revalidation paperwork in this case (10/25/2024).  The Document Control Number (DCN) is not the one referred to in the contractor's approval notice.  Compare P. Ex. 8 at 2, with CMS Ex. 6 at 1.   In sum, the document seems to be for an entirely different medical practice and is not related to this case.  In the absence of any showing that it is relevant and material, I decline to admit P. Ex. 8.  42 C.F.R. § 498.60(b).

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Discussion

1. On October 25, 2024, Petitioner filed its subsequently-approved Medicare reactivation application, and the effective date of its reactivation can be no earlier than that date.  42 C.F.R. § 424.540(d)(2).2

Enrollment.  Petitioner participates in the Medicare program as a "supplier" of services.  CMS Ex. 5 at 1; CMS Ex. 6 at 1; CMS Ex. 7 at 4; see Social Security Act (Act) § 1861(d); 42 C.F.R. §§ 400.202, 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; 3) identify and confirm a supplier's owners and practice location; and 4) grant the supplier Medicare billing privileges.  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 physician and non-physician practitioner organizations 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.

Deactivation and reactivation.  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 perform off-cycle revalidations at any time.  42 C.F.R. § 424.515(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).

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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).

Here, in a letter dated March 28, 2024, the contractor directed Petitioner to revalidate its Medicare enrollment no later than June 30, 2024.  The letter cautioned that, if Petitioner did not respond timely, the contractor might stop Petitioner's billing privileges, and Petitioner would not be paid for services rendered during the period of deactivation.  CMS Ex. 2.  Petitioner did not respond.

In a notice letter dated July 3, 2024, the contractor advised Petitioner that, because it had not timely responded to the revalidation request, the contractor was placing a stay on Petitioner's Medicare enrollment record, effective July 3, 2024, pursuant to 42 C.F.R. § 424.541.  Although Petitioner would remain enrolled in the Medicare program, the contractor would reject any claims submitted for services or items that Petitioner furnished.  CMS Ex. 3 at 1.  To resume payments, the letter directed Petitioner to revalidate its Medicare enrollment record and explained the processes for doing so.  CMS Ex. 3 at 2.  Again, Petitioner did not respond.

In a notice letter dated August 16, 2024, the contractor advised Petitioner that, because it had not timely revalidated its enrollment, the practice's Medicare billing privileges were deactivated, effective July 3, 2024 (later amended to July 1, 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 fails "to furnish complete and accurate information and all supporting documentation within 90 days of receipt of notification from CMS . . . ."

On October 25, 2024, the Medicare contractor received Petitioner's Medicare application (Form CMS-855B), which it processed to approval.  CMS Exs. 5, 6.  October 25, 2024 is therefore the effective date for reactivating Petitioner's billing privileges.  See 42 C.F.R. § 424.540(d)(2).

Petitioner does not dispute any of this but challenges the deactivation.  Petitioner complains that it did not receive any of the contractor's notice letters and first learned of the deactivation when an Explanation of Benefits included a statement that the practice was not enrolled in Medicare.  P. Br. at 2; Miller Decl. ¶ 6.  Petitioner claims that the practice moved and the notices were mailed to an old address.  P. Br. at 2.  Petitioner also maintains that the contractor sent the August 16, 2024 (CMS Ex. 4) notice to the wrong email address.  P. Br. at 2.  Petitioner submits no documentation to show that it timely advised the contractor of its new address.  In fact, the record before me includes no

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information regarding what addresses were on file when the notices were sent, nor when or whether Petitioner advised the contractor of its new address.  But those questions are not before me.  I have no authority to review a deactivation.  Jeffrey E. McIlroy, MD, Inc., DAB No. 3143 at 3-4 (2024); Tosan Fregene, M.D. & Oncology Clinics, Inc., DAB No. 3918 at 5 (2020); see 42 C.F.R. § 498.3(b) (defining "initial determinations" that are subject to review by an administrative law judge and the Departmental Appeals Board).

Nor may I grant Petitioner an earlier effective date based on any equitable or policy arguments.  Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 at 6, 9 (2019); Wishon Radiological Med. Grp., Inc., DAB No. 2941 at 6-7, 10 (2019); Ark. Health Grp., DAB No. 2929 at 7-9 (2019); James Shepard, M.D., DAB No. 2793 at 9 (2017).

Finally, I may not 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:

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 Michael B. Zafrani, M.D., DAB No. 3075 at 2 n.1 (2022).

Conclusion

Because Petitioner filed its subsequently-approved reactivation application on October 25, 2024, October 25 is the earliest possible effective date for its reactivation.  See 42 C.F.R. § 424.540(d)(2).

I may not review the deactivation, and retrospective reimbursement is not available for those whose enrollment has been deactivated.  42 C.F.R. § 424.540(e).