Concord Psychiatry, LLC, DAB CR6796 (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, Concord Psychiatry, LLC, is July 24, 2024.

I.  Procedural History

On March 20, 2025, Petitioner requested a hearing before an administrative law judge (ALJ) to dispute the reactivation effective date for its Medicare billing privileges.  On March 21, 2025, 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 April 24, 2025, CMS filed a brief/motion for summary judgment and nine proposed exhibits (CMS Exs. 1-9).  On May 30, 2025, Petitioner submitted a brief and opposition to summary judgment (P. Br.), a list of witnesses, and six proposed exhibits (P. Exs. 1-6).  On June 20, 2025, CMS filed a rebuttal brief (CMS Rebuttal) and written objections (CMS Obj.).

Page 2

II.  Admission of Evidence

Absent objection, I admit all of CMS’s proposed exhibits into the record.  See 42 C.F.R. § 498.61; Standing Order ¶ 10; CRDP § 14(e).

I exclude all of Petitioner’s proposed exhibits.  CMS objected that the proposed exhibits were either not submitted with the reconsideration request or they are duplicative to CMS exhibits.  CMS Obj. at 1-2.  Petitioner did not respond to this objection.  For the reasons stated below, I sustain CMS’s objections.

The October 25, 2024 notice of initial determination stated that Petitioner needed to submit any evidence that it wanted considered on reconsideration and potentially before an ALJ with the reconsideration request.  CMS Ex. 5 at 2.  At the outset of this case, I informed Petitioner of the following:

With respect to enrollment-related cases, Petitioner may not offer new documentary evidence absent a showing of good cause for failing to present that evidence previously to CMS.  42 C.F.R. §§ 405.803(e), 498.56(e).  If Petitioner offers new evidence, the evidence must be specifically identified as new and Petitioner must explain, in a separate filing from its brief, why good cause exists for its submission.  Petitioner must file the request when it files its prehearing exchange.

Standing Order ¶ 9.

As indicated in the Standing Order, Petitioner needed to provide good cause for submitting evidence to me for the first time.  42 C.F.R. § 498.56(e).  Because Petitioner did not, I must exclude that evidence.  I also exclude Petitioner’s evidentiary submissions that are duplicative of those in CMS’s exhibits.  See CMS Obj. at 2 n.1.  I directed the parties not to submit duplicative exhibits.  Standing Order ¶ 7.

III.  Decision on the Written Record

I directed the parties to submit written direct testimony for any witnesses they wanted to offer, and I 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

Page 3

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), 11; see also CRDP §§ 16(b), 19(b).  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 for any witnesses.  Petitioner submitted a witness list with several proposed witnesses.  However, CMS objected to the witnesses because Petitioner failed to submit the written direct testimony for those witnesses, as required by my Standing Order.  CMS Obj. at 2.  Although Petitioner has had months to seek leave to submit written direct testimony following CMS’s objection, Petitioner has not done so.  Therefore, I sustain CMS’s objection to Petitioner’s proposed witnesses.

Because neither party submitted written direct testimony from any witnesses and all submission deadlines have passed, I will decide this case based on the written record.  Anil Hanuman, D.O., DAB No. 3080 at 11-12 (2022); EI Med., Inc., DAB No. 3117 at 15 (2023); Vandalia Park, DAB No. 1940 (2004); CRDP § 19(d).

IV.  Issue

Whether July 24, 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 has been enrolled in the Medicare program as a Clinic/Group Practice since July 1, 2015.  CMS Ex. 5 at 1.
2. In an October 24, 2023 notice, a CMS contractor advised Petitioner that every five years it must revalidate the information in its Medicare enrollment records.  The notice warned Petitioner that a failure to revalidate its enrollment information by January 31, 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.”  Finally, the notice stated that the revalidation could either be done online through the Provider Enrollment, Chain, and Ownership System (PECOS) or by mail using a paper (CMS-855) application.  CMS Ex. 1 at 1.

Page 4

3. In a February 16, 2024 notice, the CMS contractor advised Petitioner that it was holding all payments on its Medicare claims because Petitioner had not revalidated its enrollment records.  The notice again warned that a failure to revalidate could result in the deactivation of its Medicare billing privileges, causing a gap in Petitioner’s reimbursement for Medicare claims.  Finally, the notice again stated that the revalidation could either be done online through PECOS or by mail using a paper (CMS-855) application.  CMS Ex. 2 at 1.
4. In an April 5, 2024 notice, the CMS contractor informed Petitioner that its Medicare billing privileges were deactivated as of April 5, 2024, because Petitioner did not revalidate its Medicare enrollment records.  The notice advised Petitioner that it could submit a rebuttal if Petitioner thought CMS imposed the deactivation incorrectly.  The notice also advised that Petitioner could recover its Medicare billing privileges if it filed an enrollment application to revalidate its Medicare enrollment records.  The notice again stated that the revalidation could either be done online through PECOS or by mail using a paper (CMS-855) application.  CMS Ex. 3.
5. CMS received Petitioner’s electronically filed enrollment application on July 24, 2024.  CMS Ex. 4 at 1; CMS Ex. 6 at 10.
6. On August 15, 2024, Petitioner provided additional information requested by the CMS contractor concerning the enrollment application.  See CMS Ex. 6 at 16.
7. In an October 25, 2024 notice of initial determination, the CMS contractor approved Petitioner’s enrollment application to reactivate billing privileges.  The notice stated that Petitioner “will have a gap in billing privileges from 04/05/2024 through 07/24/2024 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. 5 at 1.
8. In another October 25, 2024 notice, the CMS contractor approved a Change of Information application that Petitioner had filed.  CMS Ex. 6 at 11.
9. On November 27, 2024, Petitioner filed by email a request for reconsideration.  CMS Ex. 6 at 38.  The CMS contractor received the reconsideration request on December 8, 2024.  CMS Ex. 6 at 1-2, 39; CMS Ex. 7.  Petitioner requested an effective date for reactivation that would cover the period of deactivation.  Petitioner asserted that the failure to revalidate enrollment records was due to difficulties accessing PECOS and successfully submitting the revalidation information.  CMS Ex. 6 at 3-4.

Page 5

10. In a January 29, 2025 reconsidered determination, the CMS contractor upheld the July 24, 2024 reactivation effective date.  Electronic Filing System Doc. No. 1a.

VII.  Conclusion of Law

1. The effective date of reactivation for Petitioner’s Medicare billing privileges is July 24, 2024, because CMS received Petitioner’s revalidation/reactivation enrollment application on July 24, 2024, and a CMS contractor was able to process that application to approval.  42 C.F.R. § 424.540(d)(2).

VIII.  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 in the Medicare program.  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, Petitioner essentially requests that I modify its effective date for reactivation so that there is no gap in billing privileges.  Petitioner asserts that it was deactivated because of lengthy and significant problems that its credentialling contractor had with accessing and using PECOS.  P. Br. at 2.  In addition, the Change Healthcare

Page 6

data breach caused additional problems during the time that Petitioner was trying to revalidate.  P. Br. at 3.  Petitioner also asserts that an employee of the CMS contractor stated that there would be no gap in Petitioner’s billing privileges.  P. Br. at 3.  Petitioner further argues that it was forced to complete a new enrollment application, and not just a revalidation application, which consumed more time.  P. Br. at 6-7.  Finally, Petitioner argues that it is entitled to a retrospective billing period.  P. Br. at 8-10.

I am unable to modify the effective date for reactivation based on Petitioner’s arguments.  Although Petitioner had difficulty with PECOS, Petitioner was always free to file a paper revalidation enrollment application through the mail.  Faced with notices stating that its billing privileges would be deactivated, Petitioner should have ensured that it filed a revalidation application in a timely manner.

Further, to the extent that Petitioner disputes the deactivation, that deactivation notice informed Petitioner that deactivated suppliers may appeal a deactivation by filing a rebuttal with CMS.  CMS Ex. 2 at 1-2; 42 C.F.R. §§ 424.545(b), 424.546.  There is no evidence that Petitioner filed a rebuttal seeking reversal of the deactivation based on the difficulties it was having with PECOS.  Even if Petitioner had, I have no authority to reverse a deactivation or to review CMS’s decision not to reverse a deactivation.  42 C.F.R. § 424.546(f); Michael B. Zafrani, M.D., DAB No. 3075 at 3, 8 (2022).

My jurisdiction is limited to determining if CMS provided the correct effective date for reactivation.  Based on the date CMS received Petitioner’s reactivation application that it processed to approval, the effective date for reactivation is July 24, 2024.  42 C.F.R. § 424.540(d)(2).

Finally, Petitioner is not entitled to a period of retrospective billing privileges.  Petitioner missed its opportunity to file a rebuttal to the deactivation.  Because Petitioner did not appeal the deactivation, CMS cannot reimburse Petitioner for any health care items or services provided to beneficiaries 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 sympathize with Petitioner’s situation; however, my authority in this case is limited to determining if CMS properly set the date of reactivation.  See 42 C.F.R. § 498.3(b)(15). As explained above, CMS did so.1

Page 7

IX.  Conclusion

The effective date for the reactivation of Petitioner’s Medicare billing privileges is July 24, 2024.