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# Shishir K. Senapati, M.D., P.C., DAB CR5341 (2019)

----

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

## Shishir K. Senapati, M.D., P.C.,	(NPI: 1285718759 / PTAN: 0P17300),	Petitioner,

## v.

## Centers for Medicare & Medicaid Services.

### Docket No. C-18-154Decision No. CR5341June 7, 2019

### DECISION

The Centers for Medicare & Medicaid Services (CMS), through a CMS contractor, determined that the effective date for reactivation of the Medicare billing privileges for Shishir K. Senapati, M.D., P.C. (Petitioner) was April 26, 2017. Petitioner requested an administrative law judge (ALJ) hearing to dispute this effective date. Because the CMS contractor approved Petitioner's revalidation enrollment application that it received on April 26, 2017, the CMS contractor correctly determined that the effective date for the reactivation of billing privileges was April 26, 2017. Therefore, I affirm CMS's determination.

### I. Background and Procedural History

Petitioner, a physician group practice, was enrolled in the Medicare program as a supplier prior to 2017. Petitioner is owned by Shishir K. Senapati, M.D., and Dr. Senapati reassigned his Medicare benefits to Petitioner. CMS Ex. 1 at 11, 19-20.

In an October 4, 2016 letter, a CMS contractor informed Petitioner that it needed to revalidate its Medicare enrollment record by December 31, 2016. CMS Ex. 1 at 5.

**Page 2**

In a January 11, 2017 notice, the CMS contractor informed Petitioner that it was "holding all payments on your Medicare claims" because Petitioner had not revalidated its enrollment record. CMS Ex. 1 at 14. The notice warned: "Failure to respond to this notice will result in a possible deactivation of your Medicare enrollment .... This will cause a gap in your reimbursement." CMS Ex. 1 at 14.

In a March 6, 2017 notice, the CMS contractor informed Petitioner that it had stopped Petitioner's Medicare billing privileges as of March 6, 2017. The notice indicated that it would not pay claims after that date, but that Petitioner could recover billing privileges if it would revalidate its enrollment record either online or by filing a CMS-855 enrollment application. CMS Ex. 1 at 16.

On April 26, 2017, the CMS contractor received an electronically filed enrollment application to revalidate Petitioner's enrollment information. CMS Ex. 1 at 18.

In an April 28, 2017 notice, the CMS contractor informed Petitioner that, within 14 days, it must provide additional information to revalidate its enrollment. CMS Ex. 1 at 22.

In a May 9, 2017 notice, the CMS contractor informed Petitioner again that it must provide additional information. CMS Ex. 1 at 24. Petitioner submitted the requested information. CMS Ex. 1 at 26-36.

In a May 22, 2017 initial determination, the CMS contractor reactivated Petitioner's billing privileges. However, the determination noted that there was "a gap in coverage from 03/06/2017 to 04/25/2017 for failure to respond to the revalidation requested development." CMS Ex. 1 at 37.

Dr. Senapati requested reconsideration on behalf of Petitioner. He stated that Petitioner's biller became terminally ill and abruptly closed her business. Although Petitioner obtained a new biller, this biller did not handle revalidations. Petitioner's office manager revalidated Dr. Senapati's billing privileges, but did not understand that Petitioner's billing privileges needed to be revalidated as well. It was not until the March 6 notice that they looked into revalidating Petitioner. CMS Ex. 1 at 40.

In an August 24, 2017 reconsidered determination, the CMS contractor's hearing officer upheld the initial determination's conclusion that Petitioner's deactivation was effective through April 25, 2017. CMS Ex. 1 at 1-4.

Petitioner requested a hearing to dispute the reconsidered determination. Judge Keith Sickendick was assigned to this case and, on November 13, 2017, issued an Acknowledgment and Prehearing Order (Order) establishing a submission schedule for prehearing exchanges. In response, CMS filed a motion to dismiss, a motion for summary judgment, an exhibit list and one exhibit (CMS Ex. 1). Petitioner filed the same

**Page 3**

argument presented in the hearing request as its response to CMS's filings. Petitioner did not submit any exhibits. Judge Sickendick also ordered the parties to respond to certain questions he had related to the legal issues in this case, which the parties did.

On November 20, 2018, the case was transferred to me.

### II. Decision on the Written Record

CMS moved for dismissal of Petitioner's hearing request because Petitioner's hearing request appears to dispute the deactivation of Petitioner's Medicare billing privileges. CMS asserts that Petitioner does not have a right to ALJ review of CMS's decision to deactivate. As discussed below, ALJs do not have jurisdiction to review CMS's decision to deactivate billing privileges. However, ALJs have jurisdiction to review the effective date of reactivation (i.e., the end of the deactivation period). *Willie Goffney, Jr., M.D.*, DAB No. 2763 at 5 (2017). Because Petitioner disputed the period of deactivation "from March 6, 2017 through April 25, 2017," Petitioner sufficiently disputed a matter for which it has a right to a hearing (i.e., the ending date of the deactivation period). Therefore, I deny CMS's motion to dismiss.

I admit CMS Ex. 1 into the record because Petitioner did not object to it and all of the documents are relevant and material to this case.

The Order required each party to include with its prehearing exchange a list of any witnesses that it proposes to call at an oral hearing. Order § II(D)(1), (2); Civil Remedies Division Procedures (CRDP) § 16(a). Neither party submitted a witness list. Therefore, I issue this decision based on the written record because "the parties d[id] not identify any proposed witnesses." CRDP § 19(d).

### III. Issue

Whether CMS had a legitimate basis to assign April 26, 2017, as the effective date for reactivation of Petitioner's Medicare billing privileges.

### IV. Jurisdiction

I have jurisdiction to hear and decide this case. 42 C.F.R. §§ 498.3(b)(15), 498.5(*l*)(2); *see also* 42 U.S.C. § 1395cc(j)(8)

### V. Findings of Fact, Conclusions of Law, and Analysis

My findings of fact and conclusions of law are set forth in italics and bold font.

**Page 4**

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. 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. 42 U.S.C. § 1395x(d); *see also* 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 terms "*Enroll/Enrollment* means the process that Medicare uses to establish eligibility to submit claims for Medicare‐covered items and services." 42 C.F.R. § 424.502. A supplier seeking billing privileges under the Medicare program must "submit enrollment information on the applicable enrollment application. Once the ... supplier successfully completes the enrollment process ... CMS enrolls the ... 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, suppliers must revalidate their enrollment information at least every five years; however, CMS reserves the right to require revalidation at any time. 42 C.F.R. § 424.515. When CMS notifies suppliers that it is time to revalidate, the suppliers must submit the appropriate enrollment application, accurate information, and supporting documents within 60 calendar days of CMS's notification. 42 C.F.R. § 424.515(a)(2).

CMS can deactivate an enrolled 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 a supplier's 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 supplier's billing privileges due to an untimely response to a revalidation request, the enrolled 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).

***1. On April 26, 2017, the CMS contractor received Petitioner's enrollment application (CMS‐855B), which the CMS contractor ultimately approved.***

A CMS contractor deactivated Petitioner's Medicare billing privileges on March 6, 2017, based on Petitioner's failure to revalidate enrollment information. CMS Ex. 1 at 16. Petitioner submitted a CMS‐855B enrollment application to revalidate and reactivate its enrollment as a supplier in the Medicare program, which CMS received on April 26, 2017. CMS Ex. 1 at 18. The CMS contractor approved Petitioner's application and

**Page 5**

noted that the last day of the deactivation period was April 25, 2017. CMS Ex. 1 at 37. Therefore, the effective date of reactivation was set as April 26, 2017.

***2. The effective date for Petitioner's Medicare billing privileges is April 26, 2017.***

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). CMS's published guidance for its contractors states that the effective date for the reactivation of Medicare billing privileges is the date on which the contractor received the enrollment application. Medicare Program Integrity Manual (MPIM) § 15.27.1.2. That guidance is consistent with the effective date for Medicare billing privileges in § 424.520(d) and with § 424.555(b)'s prohibition on reimbursing services performed by deactivated suppliers.

In the present case, the CMS contractor properly determined that Petitioner's effective date for reactivation of its Medicare billing privileges was April 26, 2017, because that is the date that CMS received Petitioner's CMS-855B revalidation enrollment application, and the CMS contractor ultimately approved that application.

Petitioner asserts that its failures in regard to the revalidation process "truly was not done with neglect or lack of care but with misunderstanding." Hearing Request. Petitioner said that its medical biller abruptly closed her business due to a health matter and, after securing a new biller, Petitioner realized that all of the contractor's emails went to the previous biller's address. Because the former biller died, emails sent to the former biller were not forwarded to Petitioner. Despite efforts to properly revalidate (i.e., Dr. Senapati successfully revalidated his personal Medicare enrollment and billing privileges), Petitioner was confused and mistakenly did not revalidate the group practice's Medicare enrollment information. Hearing Request.

I have limited jurisdiction in this case. I can only review the effective date provided to Petitioner under § 424.520(d). That regulation provides an effective date as the date CMS received an enrollment application that it is able to process to completion. In the present case, the record shows CMS received one enrollment application for Petitioner that CMS was able to process to completion – the CMS-855B enrollment application received on April 26, 2017. Therefore, April 26, 2017, is the correct effective date.

**Page 6**

I do not have the authority to review CMS's deactivation of Petitioner's Medicare billing privileges. Deactivation is not an "initial determination," and deactivation decisions have a separate review process involving the submission of a rebuttal to CMS. *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).

In this case, CMS found that Petitioner did not respond to its revalidation request. Petitioner does not deny this, but offers an excuse for failing to do so. I am precluded from considering Petitioner's request that I reinstate his billing privileges during the deactivation period. Aside from confirming that CMS properly set Petitioner's reactivation date, I do not have authority to provide further relief. I do not have authority to provide equitable relief based on principles of fairness and thus cannot change Petitioner's effective date for that reason. *US Ultrasound*, DAB No. 2302 at 8 (2010) ("[n]either the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.").

### VI. Conclusion

I affirm CMS's determination that Petitioner's effective date for Medicare billing privileges is April 26, 2017.

Scott AndersonAdministrative Law Judge