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                              David M. Tonkin, MD, DAB CR5312 (2019)
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David M. Tonkin, MD, DAB CR5312 (2019)








  
  
    

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





David M. Tonkin, MD
	(NPI: 1760438642 / PTAN: MA5714001)
	Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-17-909Decision No. CR5312May 3, 2019

        
              
    

      DECISION
The effective date of reactivation of Petitioner's billing privileges is February 28, 2017. Petitioner is entitled to a period for retrospective billing beginning 30 days prior to the effective date of reactivation of Petitioner's billing privileges.
I. Background and Findings of Fact
On July 3, 2017, Petitioner requested administrative law judge (ALJ) review of the June 13, 2017 reconsidered determination of Wisconsin Physicians Service Insurance Corporation, the Medicare Administrative Contractor (MAC). Request for Hearing (RFH). The reconsidered determination upheld an initial determination by the MAC that the reactivation of Petitioner's billing privileges was effective on February 28, 2017, a date after the date of the deactivation of Petitioner's billing privileges on December 1, 2016. Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 1-2. Petitioner complains that the gap in billing privileges from December 1, 2016, through February 27, 2017, resulted in Petitioner not being paid for services rendered to Medicare-eligible beneficiaries during the gap period.
CMS filed a motion for summary judgment with CMS Exs. 1 and 2 on August 25, 2017. Petitioner filed a response in opposition to the CMS motion for summary judgment on September 26, 2017 (P. Br.) with no exhibits. CMS waived filing a reply brief on
**Page 2**
October 19, 2017. On January 29, 2018, CMS and Petitioner responded to issues I specified in an Order dated January 9, 2018, and CMS filed an additional exhibit, CMS Response Ex. 1. Petitioner filed with his request for hearing a collection of documents marked exhibits 1 through 3, but he did not reoffer those documents with his response to the CMS motion for summary judgment and they are not admitted as evidence.
Petitioner objects to my consideration of CMS Ex. 1, pages 13 through 20 on grounds those pages include hearsay, are not the best evidence, and have not been authenticated. P. Br. at 1-2. CMS Ex. 1 pages 13 through 20 purport to be letters dated December 1, 2016; October 5, 2016; and July 6, 2016, from the MAC to Petitioner advising of the need to revalidate his Medicare enrollment, his failure to timely revalidate, and that his billing privileges were stopped on December 1, 2016. CMS Response Ex. 1 contains what purport to be letters dated July 6, 2016, and December 1, 2016, from the MAC to Petitioner advising Petitioner of the need to revalidate his Medicare enrollment and that his billing privileges were stopped due to his failure to revalidate. CMS Response Ex. 1 at 3-4 appears to be a copy of a letter that Petitioner submitted with his request for hearing. Petitioner did not file an objection to CMS Response Ex. 1. However, I conclude Petitioner sufficiently preserved his objection to the documents in CMS Response Ex. 1 based on his specific objection in CMS Ex. 1 pages 13 through 20 because the documents are the same type documents and appear to be the same notices, but sent to Petitioner at different addresses. For purposes of summary judgment, I conclude it is not necessary to admit CMS Ex. 1 pages 13 through 20 or CMS Response Ex. 1. There is no dispute by Petitioner that his billing privileges were deactivated effective December 1, 2016, based on the MAC's conclusion that Petitioner failed to timely revalidate his enrollment. RFH at 1. CMS Ex. 1 at 13 through 20 and CMS Response Ex. 1, if authentic, therefore do not have a tendency to make a fact more or less probable because the fact Petitioner's billing privileges were stopped by the MAC due to Petitioner's failure to timely revalidate is not disputed. Therefore, CMS Ex. 1 at 13 through 20 and CMS Response Ex. 1 are not relevant to the resolution of any issue I need to decide. *See* Fed. R. Evid. 401(a). Furthermore, Petitioner's principle argument is that the deactivation was not proper because Petitioner did not receive notice of the requirement to reactivate timely or face deactivation of his billing privileges. RFH; P. Br. at 1. However, because I have no authority to review the deactivation as discussed hereafter, whether or not Petitioner received the notices in CMS Ex. 1 at 13 thorough 20 and CMS Response Ex. 1 are not facts of consequence in determining this case, i.e., they are not material, and for that reason, not relevant. *See* Fed. R. Evid. 401(b). Accordingly, CMS Ex. 1 at 1 through 12 and CMS Ex. 2 are admitted and considered as evidence. CMS Ex. 1 at 13 through 20 and CMS Response Ex. 1 are not admitted.
The material facts are not disputed. On and before December 1, 2016, Petitioner was enrolled in Medicare with billing privileges. The MAC deactivated Petitioner's billing privileges effective December 1, 2016. Subsequently, Petitioner submitted a revalidation application (CMS-855) that was received by the MAC on February 28, 2017, and that
**Page 3**
application was processed to approval by the MAC. The MAC reactivated Petitioner's billing privileges effective February 28, 2017, based on the CMS-855 received on that date. The MAC's action resulted in a gap in Petitioner's billing privileges from December 1, 2016, through February 27, 2017 (gap period), during which period Petitioner was unable to obtain reimbursement from Medicare for services he delivered to Medicare eligible beneficiaries. Petitioner remained enrolled in Medicare during the gap period. CMS Ex. 1 at 1-12; CMS Ex. 2; RFH; P. Br. at 5; CMS Response to Specified Issues at 1-4.
II. Issues, Conclusions of Law, and Analysis
**A. Issues**
Whether I have jurisdiction to review the reconsidered determination by CMS or a MAC of the effective date of reactivation of Medicare billing privileges, i.e., the right to file claims with and to receive payment from Medicare; and
The effective date of reactivation.
**B. Conclusions of Law and Analysis**
My conclusions of law are set forth in bold text followed by my analysis applying law and policy to the undisputed facts.
**1. There is authority for ALJ review in this case, but it is limited to the effective date of reactivation of Petitioner's billing privileges, i.e., the date of reactivation of Petitioner's right to submit claims to and receive payment from Medicare for care and services delivered to Medicare-eligible beneficiaries.**
**2. Petitioner has no right to review of the determination of the MAC or CMS to deactivate Petitioner's billing privileges.**
This case involves a gap in Petitioner's billing privileges that was created when the MAC deactivated Petitioner's billing privileges, and then reactivated Petitioner's billing privileges on a later date. Petitioner's real grievance is that CMS and the MAC decline to pay Petitioner for services rendered to Medicare eligible beneficiaries during the gap period, even though there is no dispute that Petitioner was enrolled in Medicare during the gap period.
I conclude Petitioner has no right to ALJ review of the MAC determination to deactivate Petitioner's billing privileges. Petitioner also has no right to ALJ review in this forum of the denial of payment of Petitioner's claims during the gap period. Petitioner does have
**Page 4**
a right to ALJ review of the reconsidered determination of the effective date of the reactivation of Petitioner's billing privileges.
CMS or the MAC may deactivate the billing privileges of a provider or supplier for failure to do any of the following:
1. Submit a claim for 12 consecutive months;
2. Report a change in enrollment information within 90 days of the date of the change, except a change in ownership or control, which must be reported within 30 days; and
3. Give CMS or the MAC complete and accurate information and all supporting documents within 90 calendar days of a request from CMS or the MAC to submit an enrollment application or certify the accuracy of its enrollment information.
42 C.F.R. § 424.540(a).1
 A provider or supplier deactivated for failure to submit a claim for 12 consecutive months may reactivate billing privileges by recertifying that all information on file with CMS is correct; providing any missing information; meeting all Medicare enrollment requirements; and being prepared to submit a valid claim. 42 C.F.R. § 424.540(b)(2). When deactivation is based on failure to timely notify CMS or the MAC of a change of information or to timely respond to a request for information, a provider or supplier must complete and submit a new enrollment application to reactivate its billing privileges, unless CMS or the MAC permit the provider or supplier to recertify that its enrollment information on file is correct. 42 C.F.R. § 424.540(b)(1). Deactivation of Medicare billing privileges is an action to protect the provider or supplier from misuse of its billing privileges and to protect the Medicare Trust funds from unnecessary overpayments. 42 C.F.R. § 424.540(c).
There is no right to ALJ review under 42 C.F.R. pt. 498, of a CMS or MAC determination to deactivate a provider's or supplier's billing privileges. The relevant regulation concerning appeal rights provides only that the provider or supplier may
**Page 5**
submit a rebuttal to CMS or the MAC under 42 C.F.R. § 405.374 (opportunity for rebuttal required for suspension of payments, offset, or recoupment). 42 C.F.R. § 424.545(b).
The Secretary of the Department of Health & Human Services (the Secretary) promulgated regulations at 42 C.F.R. §§ 424.545 and 498.5 that specify review and appeal rights in provider and supplier enrollment cases. The Secretary has not specifically stated that a provider or supplier has a right to ALJ review of CMS or MAC determinations related to the reactivation of billing privileges. 42 C.F.R. §§ 424.70-.90, 424.545, 498.3(b), 498.5. However, 42 C.F.R. § 498.3(b)(15) provides that "[t]he effective date of a Medicare provider agreement or supplier approval" are initial determinations subject to review by an ALJ. The Departmental Appeals Board (Board) has given an expansive interpretation to 42 C.F.R. § 498.3(b)(15) and found a right to ALJ review of the effective date of enrollment in Medicare as well as the effective date of the reactivation of billing privileges. *See, e.g., Victor Alvarez, M.D.*, DAB No. 2325 at 3-10 (2010) (determination of effective date of enrollment in Medicare is an initial determination subject to ALJ review and Board appeal); *Urology Grp. of NJ, LLC*, DAB No. 2860 at 6 (2018) (no right to review of a CMS or MAC determination to deactivate billing privileges but right to review of the determination of the effective date of reactivation). Applying the reasoning of the Board in *Alvarez* and *Urology*, I conclude that a supplier has the right to ALJ review of the CMS or MAC determination of the effective date of reactivation of billing privileges. Furthermore, the only determination of CMS or the MAC that is subject to my review in a provider and supplier enrollment case is the reconsidered determination. 42 C.F.R. § 498.5(*l*)(1)-(2); *Neb Grp. of Ariz. LLC*, DAB No. 2573 at 7 (2014).
The Board in *Urology*also pointed out that Medicare claim reimbursement is not subject to review by an ALJ in this forum. DAB No. 2860 at 6-7.
**3. Summary Judgment is appropriate.**
I have concluded, based on the rationale of the Board in prior cases, that Petitioner has a right to ALJ review of the reconsidered determination of the effective date of reactivation of his right to file claims with and receive payment from Medicare. I also conclude that there are no disputed issues of material fact that require a hearing in this case; CMS is entitled to judgment as a matter of law; and summary judgment is appropriate.
Petitioner is entitled to a hearing on the record before an ALJ under the Act. Act §§ 205(b); 1866(h)(1), (j); *Crestview Parke Care Ctr. v. Thompson*, 373 F.3d 743, 748-51 (6th Cir. 2004). However, when summary judgment is appropriate, no hearing is required. The Board has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498. *See, e.g.*, *Crestview Parke*, 373 F.3d at 748-51; *Ill. Knights Templar Home*, DAB No. 2274 at 3-4 (2009);
**Page 6**
*Garden City Med. Clinic*, DAB No. 1763 (2001); *Everett Rehab. & Med. Ctr.*, DAB No. 1628 at 3 (1997). The Board has accepted that Fed. R. Civ. P. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate. I advised the parties in the Acknowledgement and Prehearing Order (Prehearing Order) that summary judgment is an available procedural device and that the law as it has developed related to Fed. R. Civ. P. 56 will be applied.  Prehearing Order ¶¶ II.D. & G. Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law. *See* *Anderson v. Liberty Lobby, Inc.*, 477 U.S. 242, 248 (1986); *Mission Hosp. Reg'l Med. Ctr.*, DAB No. 2459 at 5 (2012) (and cases cited therein); *Experts Are Us, Inc.*, DAB No. 2452 at 5 (2012) (and cases cited therein); *Senior Rehab. & Skilled Nursing Ctr.*, DAB No. 2300 at 3 (2010) (and cases cited therein).
**4. The effective date of reactivation of Petitioner's billing privileges is the date on which the MAC received the application that it processed to approval, and that date is February 28, 2017.**
**5. Current CMS policy requires a period of retrospective billing related to the reactivation of Medicare billing privileges.**
The Secretary's regulations do not specify how to determine an effective date for the reactivation of Medicare billing privileges. 42 C.F.R. pt. 424, subpt. P. However, CMS has addressed the determination of the effective date of reactivation by policy.
CMS policies regarding deactivations and reactivations of billing privileges in effect at the time of the initial and reconsidered determinations in this case are in the Medicare Program Integrity Manual (MPIM), CMS Pub. 100-08, ch. 15, §§ 15.27.1.1 (deactivation) and 15.27.1.2 (reactivation) (rev. 561, eff. Mar. 18, 2015).2
 MPIM § 15.27.1.2 provides that the effective date of reactivation is the date the MAC received the reactivation application that the MAC processed to completion.
The version of MPIM § 15.27.1.2 in effect at the time of the initial and reconsidered determinations did not specifically address retrospective billing. However, effective March 12, 2019, CMS changed its policy and now requires that contractors grant retrospective billing privileges in accordance with MPIM § 15.17(B) (rev. 865, eff. Mar. 12, 2019) when reactivating billing privileges of a provider or supplier described in that section. MPIM ch. 15 §§ 15.27.1.1-.2 (rev. 865, eff. Mar. 12, 2019). CMS adopted this new policy while this case is pending ALJ review and before a final administrative
**Page 7**
decision has issued. Based on the CMS language making retrospective billing mandatory in the situations described in MPIM ch. 15 § 15.17(B), I conclude it is appropriate to implement the current CMS policy in this case. 1 Charles H. Koch, Jr. & Richard Murphy, *Admin. L. & Prac.* § 4:22 (3d ed. 2019) (generally agency must obey own rules and policies, particularly when intended to be binding); 2 Charles H. Koch, Jr. & Richard Murphy, *Admin. L. & Prac.* § 5:68 (3d ed. 2019) (generally rule or statement of policy should be given equal effect by all agency adjudicators). Petitioner is a physician and there is no dispute that he was enrolled in Medicare during the gap period and met all requirements for enrollment. Therefore, Petitioner is entitled to retrospective billing privileges for up to 30 days prior to the effective date of reactivation of billing privileges for services rendered to Medicare-eligible beneficiaries during that 30-day period. MPIM § 15.17(B)(1).
Applying the regulations in this case is straightforward. There is no dispute the MAC deactivated Petitioner's Medicare billing privileges on December 1, 2016. There is also no dispute that on February 28, 2017, the MAC received Petitioner's application to reactivate his Medicare billing privileges. Accordingly, the effective date of reactivation may only be February 28, 2017. The period for retrospective billing begins 30 days prior to the effective date of reactivation.
Petitioner argues that the deactivation of Petitioner's billing privileges should have no impact upon Petitioner's right to claim reimbursement from Medicare for services rendered to Medicare-eligible beneficiaries during the gap period because his Medicare enrollment and billing privileges were not revoked. Petitioner argues that CMS policies to the contrary violate the Secretary's regulations and operate to deprive him of property, i.e., the right to bill for services delivered to Medicare-eligible beneficiaries while he was enrolled in Medicare, without due process. Petitioner's Reply to Order to Respond to Specified Issues; P. Br. at 2-3. In *Urology*, the Board rejected a similar due process argument that the CMS action creating a gap in billing privileges resulted in an unlawful deprivation of property without due process. DAB No. 2860. The Board recognized it could not declare statutes or regulations unconstitutional and decline to follow them. However, the Board noted it could consider a constitutional claim that challenges the manner a regulation is interpreted or applied in a particular case. The Board found that the gap in billing privileges resulted from the plain language of the regulations that bound the Board. The Board commented that the petitioner should have been aware of the application of the regulations when applying to participate in Medicare. The Board found the petitioner had failed to show a taking of Medicare payments in which the petitioner had a property right. The Board commented that the creation of the gap was really the petitioner's own fault. *Urology*, DAB No. 2860 at 14-15. The Board found that the petitioner was never deprived of its Medicare enrollment because it was not revoked and the petitioner was not excluded. The Board stated that the petitioner was not challenging loss of participation in Medicare but, rather, his inability to receive reimbursement for services the petitioner Hchose to provide" to Medicare-eligible beneficiaries during the
**Page 8**
gap period after the petitioner had been advised its billing privileges were deactivated. *Id*. at 15. The Board reviewed various decisions of the federal courts and concluded the petitioner had no property interest in participation in the Medicare program. *Id*. at 16. The Board did not recognize a protectable property interest in payment for services rendered during the gap period. The crux of Petitioner's argument before me is that he should have been given proper notice and a hearing before deactivation because the deactivation would affect his property interest in payment for services rendered. The Social Security Act (Act) and the Secretary's regulations provide for no such hearing or a right to ALJ or Board review of the deactivation determination. Like the Board, I am required to follow the Act and regulations and have no authority to declare statutes or regulations invalid. *1866ICPayday.com, L.L.C.*, DAB No. 2289 at 14 (2009).
Petitioner argues that he never received the notices to revalidate his Medicare enrollment. P. Br. at 1-3; RFH. I accept this assertion as true for purposes of summary judgment. However, this fact is not material to the determination I am required to make in this case, which is the effective date of the reactivation of Petitioner's billing privileges. In this case, Petitioner does not dispute the fact that the MAC received his reactivation application on February 28, 2017. The date of receipt of the reactivation application by the MAC controls.
Petitioner's arguments may be construed to be for equitable relief or for estoppel. I have no authority to grant equitable relief. *US Ultrasound*, DAB No. 2302 at 8 (2010). Estoppel against the federal government, if available at all, is presumably unavailable absent "affirmative misconduct," such as fraud. *See, e.g.*,*Pac. Islander Council of Leaders*, DAB No. 2091 at 12 (2007); *Office of Pers. Mgmt. v. Richmond*, 496 U.S. 414, 421 (1990). Petitioner's arguments establish no basis for relief.
III. Conclusion
For the foregoing reasons, I conclude that the effective date of reactivation of Petitioner's billing privileges is February 28, 2017.


          /s/
        Keith W. Sickendick

                      Administrative Law Judge
      1. Citations are to the 2016 revision of the Code of Federal Regulations (C.F.R.) which was in effect at the time of the initial determination, unless otherwise indicated. An appellate panel of the Departmental Appeals Board (Board) concluded in Mark A. Kabat, D.O., DAB No. 2875 at 9-11 (2018), that the applicable regulations are those in effect at the time of the initial determination. However, the Board previously concluded that the only determination subject to my review in a provider and supplier enrollment case such as this is the reconsidered determination. Neb Grp. of Ariz. LLC, DAB No. 2573 at 7 (2014). back to note 1
                      2. The current CMS policy is set forth in MPIM ch. 15 §§ 15.27.1.1-.2 (rev. 865, eff. Mar. 12, 2019) and provides for retrospective billing in accordance with MPIM ch. 15 § 15.17(B). back to note 2 Back to top
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