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                              Kenneth Karger, Ph.D., DAB CR5742 (2020)
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Kenneth Karger, Ph.D., DAB CR5742 (2020)








  
  
    

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





Kenneth Karger, Ph.D.,
(PTANs: CP02542; SP00101)
(NPIs: 1407860992; 1629281514),
Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-18-1294Decision No. CR5742October 19, 2020

        
              
    

      DECISION

Petitioner, Kenneth Karger, Ph.D., is a psychologist, practicing in Ohio, who participates in the Medicare program as a supplier of services.  His Medicare billing privileges were deactivated, and he subsequently re-enrolled in the program.  The Centers for Medicare & Medicaid Services (CMS) granted his application, with an effective date of April 9, 2018, resulting in a coverage gap from October 30, 2017 through April 8, 2018.

Petitioner asserts that his enrollment was deactivated because he did not respond to an email request for additional information and complains that, because he had not expected such correspondence via email, he missed the request.  He asks that his billing privileges be restored, effective October 30, 2017.  My authority, however, is too limited to grant Petitioner such relief.

Because Petitioner filed his subsequently-approved enrollment application on April 9, 2018, I find that April 9 is the correct effective date for his enrollment.

**Page 2**

Background

In a notice letter dated May 21, 2018, the Medicare contractor, CGS Administrators, LLC, advised Petitioner that it approved his Medicare enrollment application with an effective date of April 9, 2018, which reflected a gap in billing privileges from October 30, 2017 through April 9, 2018.  CMS Ex. 6.  Petitioner requested reconsideration.  CMS Ex. 7.

In a reconsidered determination, dated July 5, 2018, a contractor hearing officer affirmed the initial determination.  CMS Ex. 8.  Petitioner appealed.

CMS moves for summary judgment.  However, because neither party proposes any witnesses, an in-person hearing would serve no purpose.  *See* Acknowledgment and Pre-hearing Order at 4, 5 (¶¶ 4(c)(iv), 8) (September 18, 2018).  I may therefore decide this case based on the written record, without considering whether the standards for summary judgment are satisfied.

CMS submits its motion and brief (CMS Br.) with eight exhibits (CMS Exs. 1-8).  Petitioner submits a response (P. Br.) with three exhibits (P. Ex. 1-3).  In the absence of any objections, I admit into evidence CMS Exs. 1-8 and P. Exs. 1-3.  *See* Acknowledgment and Pre-hearing Order at 5 (¶ 7).

Discussion

***On April 9, 2018, Petitioner filed his subsequently-approved application to reactivate his billing privileges, and the effective date can be no earlier than that date.  42 C.F.R. § 424.520(d).***1

**Enrollment**.  Petitioner Karger participates in the Medicare program as a "supplier" of services.  Social Security Act § 1861(d); 42 C.F.R. § 498.2.  To receive Medicare payments for the services furnished to program beneficiaries, a prospective supplier must enroll in the program.  42 C.F.R. § 424.505.  "Enrollment" is the process by which CMS and its contractors: 1) identify the prospective supplier; 2) validate the supplier's eligibility to provide items or services to Medicare beneficiaries; 3) identify and confirm a supplier's owners and practice location; and 4) grant the supplier Medicare billing privileges.  42 C.F.R. § 424.502.

To enroll, a prospective supplier must complete and submit an enrollment application.  42 C.F.R. §§ 424.510(d)(1), 424.515(a).  An enrollment application is either a CMS-

**Page 3**

approved paper application or an electronic process approved by the Office of Management and Budget.  42 C.F.R. § 424.502.2
  When CMS determines that a prospective supplier meets the applicable enrollment requirements, it grants Medicare billing privileges, which means that the supplier can submit claims and receive payments from Medicare for covered services provided to program beneficiaries.  For a non-physician practitioner, the effective date for billing privileges "is the *later*of the date of filing" a subsequently-approved enrollment application or "[t]he date that the supplier first began furnishing services at a new practice location."  42 C.F.R. § 424.520(d) (emphasis added).

**Revalidation and deactivation**.  To maintain his billing privileges, a supplier must, at least every five years, resubmit and recertify the accuracy of his enrollment information, a process referred to as "revalidation."  42 C.F.R. § 424.515.  In addition to periodic revalidations, CMS may, at other times and for its own reasons, ask a supplier to recertify the accuracy of his enrollment information.  42 C.F.R. § 424.515(d)-(e).  Within 60 days of receiving CMS's notice to recertify, the supplier must submit an appropriate enrollment application with complete and accurate information and supporting documentation.  42 C.F.R. § 424.515(a)(2).

If, within 90 days from receipt of CMS's notice, the supplier does not furnish complete and accurate information and all supporting documentation or does not resubmit and certify the accuracy of his enrollment information, CMS may deactivate his billing privileges, and no Medicare payments will be made.  42 C.F.R. §§ 424.540(a)(3), 424.555(b).  To reactivate his billing privileges, the supplier must complete and submit a new enrollment application.  42 C.F.R. § 424.540(b)(1).  It is settled that, following deactivation, section 424.520(d) governs the effective date of reenrollment.  *Howard M. Sokoloff, DPM, MS, Inc.*, DAB No. 2972 (2019); *Urology Grp. of NJ, LLC*, DAB No. 2860 (2018); *Willie Goffney, Jr., M.D.*, DAB No. 2763 at 7 (2017), *aff'd sub nom.*  *Goffney v. Azar*, No. CV 17-8032 MRW (C.D. Cal. Sept. 25, 2019).

I have no authority to review a deactivation.  *Sokoloff*, DAB No. 2972 at 6; *Ark. Health Grp*., DAB No. 2929 at 7-9 (2019).

**Petitioner's deactivation and reenrollment**.  Here, in a notice letter, dated July 11, 2017, the contractor advised Petitioner to revalidate his Medicare enrollment by updating or confirming the information in his record.  The letter directed him to revalidate, no later than September 30, 2017, by updating his information through PECOS or submitting an updated paper application (Form CMS-855).  The letter warned that the contractor could stop Petitioner's Medicare billing privileges if he did not respond.  CMS Ex. 1.

**Page 4**

Petitioner filed his enrollment application on September 8, 2017.  CMS Ex. 2.  However, the contractor determined that the application was incomplete.  In a development letter, dated September 26, 2017, it asked Petitioner to submit revisions and additional information within ten days.  CMS Ex. 3.  The letter warned that the application might be rejected if the information was not submitted or if it was incomplete or incorrect; the contractor would make no additional contacts for corrections.  CMS Ex. 3 at 2.  The contractor emailed the letter to the address listed in Petitioner's September 8 enrollment application.  *See* CMS Ex. 2 at 12 (designating the contact person with contact information); CMS Ex. 3 at 1.

Petitioner did not respond.

In a notice, dated October 31, 2017, the contractor advised Petitioner that his billing privileges were stopped, effective October 30, 2017, because he had not revalidated his enrollment record or had not responded to the contractor's request for more information.  The notice instructed Petitioner to revalidate his enrollment record through PECOS or to submit an updated paper enrollment application, CMS-855.  CMS Ex. 4 at 2.  The contractor again sent the notice to Petitioner's email address.  CMS Ex. 4 at 1.

On**April 9, 2018,** Petitioner filed a Medicare enrollment application (CMS-855I), which the contractor subsequently approved.  CMS Ex. 5.3
  Thus, pursuant to section 424.520(d), the date Petitioner filed his subsequently-approved enrollment application – April 9, 2018 – is the correct effective date of enrollment.  *Sokoloff,* DAB No. 2972; *Urology Grp.*, DAB No. 2860; *Goffney,* DAB No. 2763 at 7.

Both the initial and reconsidered determinations mistakenly identify the gap in billing privileges.  The initial determination says that Petitioner has a gap in billing privileges "from October 30, 2017 *through April 09, 2018*."  CMS Ex. 6 at 1 (emphasis added).  The reconsidered determination says that Petitioner's "application was approved . . . with a gap in coverage from October 30, 2017 *to April 8, 2018*."  CMS Ex. 8 at 2 (emphasis added).  In fact, the gap in billing is from October 30 *until* April 9 or from October 30 *through April 8*.  As of April 9, 2018, Petitioner was re-enrolled in the program.

**The issues that are not before me:  the deactivation and coverage lapse**.  As the discussion above shows, the case before me is straightforward.  Petitioner, however, complains about the deactivation of his enrollment.  He claims that he did not receive the contractor's notice letter because it was sent to his email address, and he did not notice it

**Page 5**

there.  The contractor had never before sent correspondence to his email address.  I simply have no authority to review the deactivation nor to grant him the relief he seeks.  *Sokoloff*, DAB No. 2972 at 6; *Ark. Health Grp*., DAB No. 2929 at 7-9 and cases cited therein.

Conclusion

Because Petitioner filed his subsequently-approved reenrollment application on April 9, 2018, CMS properly granted his Medicare reenrollment effective that date.


          /s/
        Carolyn Cozad Hughes

                      Administrative Law Judge
      1. I make this one finding of fact/conclusion of law. back to note 1
                      2. CMS's electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System). back to note 2
                      3. The application is date-stamped:  "18099."  Some Medicare contractors stamp paper applications with a "Julian" date stamp.  The Julian calendar counts the days of the year consecutively.  The first two digits indicate the year – 2018.  The next three digits indicate the date – the 99th day of 2018 or April 9, 2018. back to note 3 Back to top
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