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                              Stanley Pachter, Ph.D., DAB CR5042 (2018)
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Stanley Pachter, Ph.D., DAB CR5042 (2018)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Civil Remedies Division





Stanley Pachter, Ph.D.,
	(NPI: 1760407928),
	Petitioner
	v.
	Centers for Medicare & Medicaid Services
Docket No. C-17-705Decision No. CR5042March 15, 2018

        
              
    

      DECISION
Noridian Healthcare Solutions, Inc. (Noridian), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), reactivated the Medicare billing privileges of Stanley Pachter, Ph.D. (Petitioner or Dr. Pachter) effective November 14, 2016.  Petitioner requested a hearing before an administrative law judge to dispute this effective date.  Because Noridian approved Petitioner’s revalidation enrollment application that it received on November 14, 2016, it correctly determined that the effective date for Petitioner’s reactivated billing privileges is November 14, 2016.  Therefore, I affirm the effective date determination.
I. Background
By email dated July 18, 2016, Noridian informed Petitioner that he must revalidate his Medicare enrollment by July 31, 2016.  CMS Exhibit (Ex.) 1 at 1, 3.  In response, on July 18, 2016, Petitioner submitted an online application via the Provider Enrollment, Chain and Ownership System (PECOS).  CMS Ex. 3 at 1.  On August 1, 2016, Noridian emailed Petitioner to request that he provide additional information in support of the
Page 2
application.  CMS Ex. 4.  The August 1 email warned Petitioner that “[f]ailure to respond in a timely manner will result in your Medicare application being rejected . . . .”  CMS Ex. 4 at 1.  The August 1 email was addressed to “smpachter@cox.com.”  *Id.* The “smpachter@cox.com” email address appears on Petitioner’s web application in the block for “Enrollment Application Contact Person.”  CMS Ex. 3 at 3.  Petitioner represents that this email address is incorrect, and the correct email address is “smpachter@cox.net.”1
  P. Br. at 1.  Petitioner denies receiving Noridian’s August 1 email.  *Id.*
By email on October 10, 2016, Noridian informed Petitioner that his billing privileges were stopped because either he hadn’t revalidated his enrollment record or he had not responded to requests for more information.  CMS Ex. 6 at 1.  At the same time, Noridian apparently rejected Petitioner’s July 18 Medicare enrollment application.2
  Noridian deactivated Petitioner’s Medicare billing privileges effective October 14, 2016.  CMS Ex. 7 at 1.
Petitioner submitted a second Medicare revalidation application and supporting documents, which Noridian received on November 14, 2016.  CMS Ex. 5 at 1; CMS Ex. 8.  Noridian approved the application and reactivated Petitioner’s Medicare enrollment and billing privileges effective November 14, 2016.  CMS Ex. 1 at 7.  In its approval letter dated December 20, 2016, Noridian informed Petitioner that there was a lapse in his Medicare billing privileges from October 14, 2016 through November 13, 2016.  *Id.*
Petitioner requested reconsideration of the determination that his Medicare billing privileges were reactivated effective November 14, 2016.  CMS Ex. 1 at 1-2.  In response, Noridian issued a reconsidered determination concluding that November 14, 2016, was the correct effective date of reactivation.  CMS Ex. 12.
Petitioner requested a hearing before an administrative law judge, and the case was assigned to me.  I issued an Acknowledgement and Pre-Hearing Order, dated May 26, 2017 (Pre-Hearing Order), which required each party to file a pre-hearing exchange consisting of a brief and any supporting documents.  Pre-Hearing Order ¶ 4.  CMS filed its brief (CMS Br.), which incorporated a motion for summary judgment, and twelve proposed exhibits (CMS Exs. 1-12).  Petitioner filed a brief (P. Br.), did not offer any proposed exhibits, and did not object to the exhibits offered by CMS.  Therefore, in the
Page 3
absence of objection, I admit CMS Exs. 1-12.  Neither party offered the written direct testimony of any witness as part of its pre-hearing exchange.  As stated in my May 26, 2017 Pre-Hearing Order, “[a]n in-person hearing to cross-examine witnesses will be necessary only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine.”  Pre-Hearing Order ¶ 10.  Therefore, an in-person hearing is not necessary, and I decide this case based on the parties’ written submissions, without regard to whether the standards for summary judgment are satisfied.
II. Issue
The issue in this case is whether Noridian, acting on behalf of CMS, properly established November 14, 2016, as the effective date of reactivation of Petitioner’s Medicare enrollment and billing privileges.
III. Jurisdiction
I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(*l*)(2); *see also*Social Security Act (Act) § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).
IV. Discussion
A. Applicable Legal Authority
The Social Security Act authorizes the Secretary of Health and Human Services to promulgate regulations governing the enrollment process for providers and suppliers.  Act §§ 1102, 1866(j) (42 U.S.C. §§ 1302, 1395cc(j)).  A “supplier” is “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.  Act § 1861(d) (42 U.S.C. § 1395x(d)); *see also*Act § 1861(u) (42 U.S.C. § 1395x(u)).
A supplier must enroll in the Medicare program to receive payment for covered Medicare items or services.  42 C.F.R. § 424.505.  The regulations define “*Enroll/Enrollment*” as “the process that Medicare uses to establish eligibility to submit claims for Medicare-covered items and services.”  42 C.F.R. § 424.502.  A provider or supplier seeking billing privileges under the Medicare program must “submit enrollment information on the applicable enrollment application.  Once the provider or supplier successfully completes the enrollment process . . . CMS enrolls the provider or supplier into the Medicare program.”  42 C.F.R. § 424.510(a).  CMS then establishes an effective date for billing privileges under the requirements stated in 42 C.F.R. § 424.520(d) and may permit limited retrospective billing under 42 C.F.R. § 424.521.
To maintain Medicare billing privileges, providers and suppliers must revalidate their enrollment information at least every five years.  42 C.F.R. § 424.515.  However, CMS
Page 4
reserves the right to perform revalidations at any time. 42 C.F.R. § 424.515(d), (e). When CMS notifies providers and suppliers that it is time to revalidate, the providers or suppliers must submit the appropriate enrollment application, accurate information, and supporting documentation within 60 calendar days of CMS’s notification. 42 C.F.R. § 424.515(a)(2). CMS can deactivate an enrolled provider’s or supplier’s Medicare billing privileges if the enrollee fails to comply with revalidation requirements. 42 C.F.R. § 424.540(a)(3). When CMS deactivates providers’ or suppliers’ Medicare billing privileges, “[n]o payment may be made for otherwise Medicare covered items or services furnished to a Medicare beneficiary.” 42 C.F.R. § 424.555(b). If CMS deactivates a provider’s or supplier’s billing privileges due to an untimely response to a revalidation request, the enrolled provider or supplier may apply for CMS to reactivate its Medicare billing privileges by completing a new enrollment application or, if deemed appropriate, recertifying its enrollment information that is on file. 42 C.F.R. § 424.540(b)(1).
B. Findings of Fact and Conclusions of Law3
***1. Noridian received Dr. Pachter’s application to revalidate his Medicare billing privileges on November 14, 2016, and processed the application to approval.***
***2. The effective date of reactivation for Dr. Pachter’s Medicare billing privileges is November 14, 2016.***
The effective date for Medicare billing privileges for physicians, non-physician practitioners, and physician or non-physician practitioner organizations is the later of the “date of filing” or the date the supplier first began furnishing services at a new practice location.  42 C.F.R. § 424.520(d).  The “date of filing” is the date that the Medicare contractor “receives” a signed enrollment application that the Medicare contractor is able to process to approval.  73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008); *Donald Dolce, M.D.*, DAB No. 2685 at 8 (2016).
It is undisputed that Petitioner submitted an application to revalidate his Medicare enrollment on July 18, 2016.  CMS Ex. 3 at 1.  It is also undisputed that Noridian did not approve that application because Petitioner did not timely respond to the request for more information.  CMS Ex. 6 at 1.  Noridian received the application to revalidate Dr. Pachter’s Medicare enrollment that it processed to approval on November 14, 2016.  *See*CMS Ex. 8.  Noridian approved that application.  CMS Ex. 1 at 7.  Accordingly, as required by regulation, the effective date of reactivation of Dr. Pachter’s Medicare enrollment is November 14, 2016.
Page 5
***3. I have no authority to review the deactivation of Dr. Pachter’s Medicare billing privileges on October 14, 2016, nor may I review Noridian’s rejection of Dr. Pachter’s July 18, 2016 revalidation application.***
Petitioner argues that his Medicare enrollment should not have been deactivated because Noridian did not send the request for additional information in support of his July 18 application to his correct email address.  P. Br. 2-3.  Petitioner contends that the “smpachter@cox.com” email address is incorrect, and he represents that he did not receive the request for information Noridian sent to that email address.  *Id.* at 1.  Petitioner argues that the PECOS website has an incorrect email address listed, but the PECOS system automatically forwards him to the National Plan & Provider Enumeration System website, which contains his correct email address.  *Id.* at 2.  Petitioner’s argument appears to be that “incorrect information was imported into [his] PECOS account,” which caused the delay in providing additional forms.  *Id.*at 2-3.  Petitioner further disputes that his July enrollment application was incomplete.  *Id.* at 1.
However, even accepting as true all of Petitioner’s representations, his arguments do not provide a basis for me to change the effective date of reactivation of his Medicare billing privileges.  This is because whether Petitioner received Noridian’s request for additional information and whether Noridian was correct in making the request, are relevant, if at all, to whether Noridian acted properly in rejecting Petitioner’s July 2016 application and deactivating Petitioner’s billing privileges.  But, the regulations do not provide for administrative law judge review of a contractor’s decision to reject an application.  42 C.F.R. § 424.525(d).  Similarly, I do not have jurisdiction to review CMS’s deactivation of Petitioner’s Medicare billing privileges because deactivation is not an “initial determination” and deactivation decisions have a separate review process.  *See* 42 C.F.R. §§ 424.545(b), 498.3(b); *see also Willie Goffney, Jr., M.D.*, DAB No. 2763 at 4-5 (2017).  Thus, my jurisdiction in this case is limited to reviewing the effective date of the approval of Petitioner’s reactivation enrollment application.  42 C.F.R. § 493.3(b)(15).
For this reason, even if Noridian acted improperly in rejecting Petitioner’s July enrollment application and deactivating his billing privileges, I could not grant him an earlier effective date.  As an appellate panel of the Departmental Appeals Board observed in *James Shepard, M.D.*, providers and suppliers may not challenge indirectly an action for which the regulations prohibit direct administrative review.  DAB No. 2793 at 8 (2017).  In *Shepard*, the panel held that the supplier could not obtain review of a CMS contractor’s rejection of a previous enrollment application by challenging the effective date of enrollment based on a later approved application.  *Id.*  For the same reasons
Page 6
articulated by the panel in *Shepard*, Petitioner’s arguments in the present case amount to a backdoor challenge to contractor actions for which the regulations do not provide administrative appeal rights.  *See id.*
Finally, to the extent Petitioner contends I should grant him an earlier effective date based on principles of equity or fairness, I may not set aside CMS’s lawful exercise of its discretion based on principles of equity.  *See, e.g.*,*Central Kansas Cancer Inst.*, DAB No. 2749 at 10 (2016); *see also Shepard*, DAB No. 2793 at 9.
V. Conclusion
For the reasons explained above, I affirm that the effective date of Dr. Pachter’s Medicare enrollment and billing privileges is November 14, 2016.


          /s/
        Leslie A. Weyn

                      Administrative Law Judge
      1. Elsewhere in the same application, Petitioner’s email is listed as “smpacter@cox.net.” See, e.g., CMS Ex. 3 at 2 (block for “Correspondence Address”). back to note 1
                      2. Noridian’s October 10, 2016 email does not expressly state that Petitioner’s July 18 application was rejected. CMS Ex. 6. Rather, it is only in Noridian’s reconsidered determination, dated March 23, 2017, that Noridian explains that it rejected the July 18 application. CMS Ex. 12 at 2. back to note 2
                      3. My findings of fact and conclusions of law appear as numbered headings in bold italic type. back to note 3 Back to top
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