Health Law Daily Medicare applicants can’t count on CMS to find, correct application mistakes
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Monday, November 6, 2017

Medicare applicants can’t count on CMS to find, correct application mistakes

By Rebecca Mayo, J.D.

The Departmental Appeals Board (DAB) agreed with an administrative law judge’s (ALJ) decision to reject applicants’ claims based on equitable estoppel, holding that it has no authority to overturn a legally valid agency action on equitable grounds. The DAB further held that applicants must submit the correct Medicare enrollment forms and should not rely on CMS to determine the applicant’s intent to file additional forms and substitute missing forms by gathering information from the forms submitted (Weinberger v. CMS, Docket No. A-16-130, Decision No. CR2823, September 20, 2017; Vizy v. CMS, Docket No. A-16-131, Decision No. CR2823, September 20, 2017).

Background. Two physicians who were individually enrolled in Medicare as physician suppliers and also as a family practice group failed to revalidate their individual enrollments in the Medicare program within the required timeframe. The CMS contractor gave the physicians multiple opportunities and nearly 11 months to submit the required forms. Over a month after the final deadline passed, the physicians filed the correct forms, which were subsequently approved with the date of submission as the effective date of enrollment. The physicians requested reconsideration of that effective date and requested it date back to the original date of deactivation of their billing privileges. The contractor upheld the established effective date of re-enrollment. The physicians then appealed to the ALJ, who also upheld the date of re-enrollment (see ALJ puts stamp of approval on physicians’ effective dates, August 23, 2016). The DAB affirmed the ALJ’s decision and upheld the date of re-enrollment.

Lack of evidence. According to the ALJ, the physicians failed to provide sufficient evidence that they submitted individual enrollment applications prior to the established date of re-enrollment. The physicians argued that even if they did not submit the individual enrollment forms, the contractor could plainly see from the applications and information that they did submit for the practice, that the physicians also intended to revalidate their individual enrollments. They argued that the information needed for revalidation was in the forms they did submit and if there was missing information for the individual physicians, the contractor should have requested that additional information. The DAB held that the physicians failed to show that the contractor "was authorized, much less required, to treat the aggregate information from other applications as a substitute for duly completed, signed and submitted 855I individual enrollment applications."

The physicians also asserted claims that amounted to an equitable estoppel claim. The DAB agreed with the ALJ that neither have the authority to overturn a legally valid agency action on equitable grounds. Even if they had such authority, the physicians would have to show affirmative misconduct by the government and the physicians have not shown such conduct. The physicians had access to multiple resources that explained the requirements they were to meet for revalidation, including the instructions on the forms that they were submitting. The DAB found that it was unreasonable for the physicians to rely solely on the advice of the contractor to their own detriment.

Companies: CGS Administrators, LLC

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