By Jeffrey H. Brochin, J.D.
A CMS decision which established a family health clinic’s effective date for reactivation of its Medicare billing privileges as of the date that its full application was received, was upheld by an administrative law judge (ALJ). The ALJ determined that the Departmental Appeals Board (DAB) had no authority to determine issues surrounding the contractor’s deactivation of the provider’s billing privileges, but, rather, only those issues pertaining to the proper reactivation date. CMS’s motion for summary judgment sustaining the determination of the Medicare contractor was therefore affirmed (Arkansas Health Group v. CMS, Docket No. C-18-37, Decision No. CR5028, February 16, 2018).
Deactivation of privileges. On December 12, 2016, the CMS contractor sent the provider a letter requesting that it revalidate its Medicare enrollment information. On January 3, 2017, the provider filed an application for revalidation of its billing privileges, but the contractor concluded that the application lacked necessary information and, therefore it sent a request on February 23, 2017 seeking additional information. The provider did not reply to the request. On May 2, 2017, the contractor deactivated the provider’s billing privileges, after which the provider filed an application for reactivation of its billing privileges on May 22, 2017. Although the contractor initially determined that this application too was ineffective, on reconsideration, the application was accepted and a reactivation date of May 22, 2017 was applied.
Limited authority to hear appeals. The provider protested that its failure to reply to the contractor’s information request of February 23, 2017, was not its fault and that it should not have been penalized for its failure to provide the requested information because it never received the contractor’s February 23, 2017 letter. However, the ALJ dismissed that issue noting that the argument was one that he had no authority to hear and decide because it effectively consisted of a challenge to the contractor’s decision to deactivate Medicare billing privileges, and a decision to deactivate is non-appealable.
The provider further argued that, at the very least, there were disputed issues of material fact that precluded entry of summary judgment against it, specifically, facts addressing the question of whether the provider received the contractor’s February 23, 2017 letter. However, the facts raised were not deemed material inasmuch as they also pertained to a question over which the ALJ had no authority to hear or decide: the contractor’s decision to deactivate the provider’s participation.
MPIM guidance. The ALJ noted that CMS has published guidance to its contractors concerning what effective participation date to assign to a provider that seeks to reactivate its participation. That date is the date when that the contractor receives a re-enrollment application that it processes to completion. That guidance is consistent with regulatory requirements (42 C.F.R. § 424.520(d)) governing the effective date of participation of newly participating suppliers and providers.
No equitable appeals. Lastly, the ALJ noted that there was in fact an equitable aspect to the provider’s argument which asserted that it was unfair that it be penalized for not responding to a notice that it contended it never received. However, the ALJ ruled that he had no authority to hear and decide that argument due to the fact that equitable challenges to CMS’s determinations are not appealable.
The ALJ concluded based on the evidence that an effective date earlier than May 22, 2017 was not warranted for the reactivation of the provider’s Medicare enrollment and billing privileges.
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