Skip to main content


U.S. flag
      An official website of the United States government
              Here’s how you know
        Here’s how you knowDot gov**Official websites use .gov**
                 A **.gov** website belongs to an official government organization in the United States.
                  HTTPS**Secure .gov websites use HTTPS**
                 A **lock** (A locked padlock) or **https://** means you’ve safely connected to the .gov website. Share sensitive information only on official, secure websites. 
  Menu Close
          HHS Search block
    Search
        








  
  
    

  
      

                                      About HHS
    
                        
                              
      
      
      Programs & Services
    
                        
                              
      
      
      Grants & Contracts
    
                        
                              
      
      
      Laws & Regulations Breadcrumb
    Home
                              About
                              Agencies
                              DAB
                              Decisions
                              ALJ Decisions
                              2019
                              Anthony J. Lama, MD, APMC, DAB CR5397 (2019)
 Navigate to:
  Departmental Appeals Board (DAB)
    
                                                  
                                                    
            
      
      
      
      About DAB
                                            
            
            Organizational Overview
    
                                                  
                              
            
      
      
      
      Who are the Judges?
    
                                                  
                              
            
      
      
      
      DAB Divisions
    
                                                  
                              
            
      
      
      
      Contact DAB
    
                                                  
                                                    
            
      
      
      
      Filing an Appeal Online
                                            
            
            DAB E-File
    
                                                  
                              
            
      
      
      
      Medicare Operations Division (MOD) E-File
    
                                                  
                                                    
            
      
      
      
      Different Appeals at DAB
                                            
            
            Appeals to DAB Administrative Law Judges (ALJs)
                          
            
            Forms
    
                                                  
                              
            
      
      
      
      Procedures
    
                                                                
                                                    
            
      
      
      
      Appeals to Board
                          
            
            Practice Manual
    
                                                  
                              
            
      
      
      
      Guidelines
    
                                                  
                              
            
      
      
      
      Regulations
    
                                                  
                              
            
      
      
      
      National Coverage Determination Complaints
    
                                                                
                                                    
            
      
      
      
      Appeals to the Medicare Appeals Council (Council)
                          
            
            Forms
    
                                                  
                              
            
      
      
      
      Fully Integrated Duals Advantage (FIDA) Demonstration Project
    
                                                  
                                                    
            
      
      
      
      Alternative Dispute Resolution Services
                                            
            
            Sharing Neutrals
    
                                                  
                              
            
      
      
      
      ADR Training
    
                                                  
                              
            
      
      
      
      Other ADR Services
    
                                                  
                                                    
            
      
      
      
      DAB Decisions
                                            
            
            Board Decisions
    
                                                  
                              
            
      
      
      
      DAB Administrative Law Judge (ALJ) Decisions
    
                                                  
                              
            
      
      
      
      Medicare Appeals Council (Council) Decisions
    
                                    
                              
            
      
      
      
      Stakeholder Feedback
    
                                                  
                                                    
            
      
      
      
      Careers
                                            
            
            Open Career Opportunities
    
                                                  
                              
            
      
      
      
      Internships & ExternshipsText resize icon

                    




Anthony J. Lama, MD, APMC, DAB CR5397 (2019)








  
  
    

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





Anthony J. Lama, MD, APMC
	(NPI: 1518120815 / PTAN: 5DE88),
	Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-18-40Decision No. CR5397August 15, 2019

        
              
    

      DECISION
Novitas Solutions, Inc. (Novitas), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), reactivated the Medicare enrollment and billing privileges of Anthony J. Lama, M.D., APMC1
 (Petitioner) effective June 2, 2017, creating a gap in his billing privileges from May 25, 2017, through June 1, 2017. On reconsideration, Novitas affirmed that it was imposing a gap in Petitioner's billing privileges and Petitioner appealed. Because June 2, 2017, is the date Novitas received the revalidation application it was able to process to approval, the effective date of reactivation of Petitioner's billing privileges is June 2, 2017.
I. Background
Petitioner is a physician practicing in New Orleans, Louisiana, who was enrolled in the Medicare program. *See, e.g.*, CMS Exhibit (Ex.) 8 at 1. On January 9, 2017, Novitas notified Petitioner that he needed to revalidate his Medicare enrollment by March 31,
**Page 2**
2017. CMS Ex. 1 at 1. Petitioner submitted an incomplete revalidation application on March 27, 2017. CMS Ex. 2. In an April 17, 2017 email, Novitas informed Petitioner that his application was incomplete and he needed to submit additional information by May 17, 2017. CMS Ex. 3.
On May 25, 2017, Novitas informed Petitioner that his Medicare billing privileges were deactivated on May 25, 2017, because he did not respond to Novitas' request for additional information. CMS Ex. 4 at 1. In response, on June 2, 2017, Petitioner submitted a completed revalidation application. CMS Ex. 5. In an initial determination dated June 13, 2017, Novitas informed Petitioner that his revalidation application had been approved and that his "[e]ffective date" was "May 23, 2008." CMS Ex. 6. Novitas did not explain that it was imposing a gap in billing or otherwise acknowledge that it had deactivated Petitioner's billing privileges for any period of time. *Id.* Nor did Novitas determine that Petitioner's date of reactivation was anything other than "May 23, 2008." *Id*.
Although the initial determination did not mention deactivation or a gap in billing privileges, Novitas did deactivate Petitioner's billing privileges. *See* CMS Br. at 1. Petitioner evidently became aware of the gap in his billing privileges, because he timely submitted a request for reconsideration to Novitas. CMS Ex. 7. In his request for reconsideration, Petitioner asked that his billing privileges be reactivated on the date of deactivation, May 25, 2017. *Id.* at 4. Petitioner explained that he had not received Novitas' request for additional information. *Id*. On September 12, 2017, Novitas issued its reconsidered determination explicitly imposing a gap in Petitioner's billing privileges from May 25, 2017, through June 1, 2017.2
 CMS Ex. 8 at 2. The reconsidered determination stated:
Novitas Solutions is not granting you ... a new Medicare effective date. The gap in coverage is applied when a provider/supplier is non-responsive to a revalidation request. The gap is between the deactivation and reactivation of billing privileges, with the reactivation effective date being based on the receipt date of the [revalidation] application.
*Id.* In seeming contradiction to this explanation, the reconsidered determination also stated that Petitioner's revalidation "application was approved . . . reinstating your Medicare billing privileges back to the original effective date [i.e. May 23, 2008]." *Id.*
Petitioner timely requested a hearing before an administrative law judge to challenge Novitas' unfavorable reconsidered decision. Request for Hearing (RFH). The case was
**Page 3**
assigned to me and I issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) that required each party to file a pre-hearing exchange consisting of a brief and any supporting documents, including any Motion to Dismiss or Motion for Summary Judgment. Pre-Hearing Order ¶ 4. On December 6, 2017, CMS timely submitted its pre‐hearing exchange, which includes its motion for summary judgment (CMS Br.) and eight exhibits (CMS Exs. 1-8).
Petitioner did not timely file a pre-hearing exchange, and I therefore ordered him to show cause why he failed to comply with my Pre-Hearing Order. Petitioner responded, explaining that he failed to submit a pre-hearing exchange because he thought he could rely on the documents he previously submitted to Novitas. I treat Petitioner's response to the show cause order as his brief (P. Br.) and find good cause to accept it for filing out of time. Petitioner did not file any exhibits with his brief.
Petitioner did not object to the exhibits offered by CMS. Therefore, in the absence of objection, I admit CMS Exs. 1-8. Neither CMS nor Petitioner offered the written direct testimony of any witness as part of the pre-hearing exchange. As I informed the parties in my 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
Whether Novitas, acting on behalf of CMS, properly established June 2, 2017, as the effective date of reactivation of Petitioner's Medicare 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 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)).
**Page 4**
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 consistent with 42 C.F.R. § 424.520(d) and may permit retrospective billing as provided in 42 C.F.R. § 424.521. CMS sets the effective date of enrollment in accordance with the following:
The effective date for billing privileges for physicians, non‐physician practitioners, physician and non-physician practitioner organizations, and ambulance suppliers is the later of—
(1) The date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or
(2) The date that the supplier first began furnishing services at a new practice location.
42 C.F.R. § 424.520(d).
**B. Findings of Fact and Conclusions of Law3**
***1. On June 2, 2017, Novitas received Petitioner's application to reactivate his Medicare billing privileges and subsequently approved that application.***
***2. The effective date of reactivation for Petitioner's Medicare billing privileges is June 2, 2017.***
The effective date for Medicare billing privileges for physicians, such as Petitioner, is either: 1) the date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or 2) 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
**Page 5**
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).
Novitas received a revalidation application from Petitioner on June 2, 2017. CMS Ex. 5 at 2. Novitas subsequently approved that application. CMS Ex. 6; CMS Ex. 8. Accordingly, as required by regulation, the effective date of reactivation of Petitioner's Medicare enrollment is June 2, 2017. To the extent Novitas' initial or reconsidered determinations can be read as setting Petitioner's effective date of Medicare enrollment as May 23, 2008, this effective date is not supported by the regulations and I reverse it for that reason.
In support of his position that I should grant him an earlier effective date of reactivation, Petitioner argues that he never received Novitas' email request for additional information. P. Br. at 1. Petitioner explains that his preferred method of communication is mail and his "mail service has been very inconsistent lately," because his mail courier was on vacation. RFH. Petitioner also contends that he should not be held accountable for his late response to Novitas' request for additional information because the CMS helpdesk provided him with "misleading information." P. Br. at 1. Further, Petitioner states that he "is a solo practitioner and this billing gap would cause a financial hardship on his practice ... as the majority of [his] patients have Medicare." RFH. However, as I explain in the following sections of this decision, Petitioner's arguments concern issues that are beyond my jurisdiction to hear and decide.
***3. I have no authority to review Novitas' decision to deactivate Petitioner's billing privileges.***
Novitas deactivated Petitioner's Medicare enrollment and billing privileges effective May 25, 2017, because Petitioner failed to provide additional information which Novitas requested. CMS Ex. 4. Petitioner does not explicitly argue that Novitas' deactivation decision was wrong. However, Petitioner does so implicitly by asking that his effective date of reactivation be changed to coincide with the date Novitas deactivated his Medicare billing privileges, thus eliminating the period of deactivation.
Petitioner argues that he never received Novitas' email request for additional information. P. Br. at 1. Specifically, Petitioner claims his preferred method of communication is mail and his "mail service has been very inconsistent lately," since his mail carrier was on vacation. RFH. Yet, even assuming that Petitioner did not receive Novitas' email
**Page 6**
request for additional information,4
 this is not a basis to conclude that Novitas erred in setting the effective date of reactivation for Petitioner's Medicare billing privileges. Whether Petitioner received Novitas' request for additional information is only relevant to whether Novitas acted properly in deactivating Petitioner's billing privileges. However, I do not have jurisdiction to review Novitas' 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(a), (b), 498.3(b); *see also Willie Goffney, Jr., M.D.*, DAB No. 2763 at 4-5 (2017).
***4. I cannot grant Petitioner equitable relief.***
Finally, Petitioner contends that I should grant him an earlier effective date because CMS's help desk provided "misleading information" and a later effective date will cause a "financial hardship" to his practice. P. Br. at 1; RFH at 2. Petitioner's arguments amount to a request for equitable relief. However, I may not set aside the lawful exercise of discretion by CMS or its contractor based on principles of equity. *See US Ultrasound*, DAB No. 2302, at 8 (2010);*Cent. Kan. Cancer Inst.*, DAB No. 2749 at 10 (2016); *see also James Shepard, M.D.*, DAB No. 2793 at 9 (2017).
V. Conclusion
For the reasons explained above, I find and conclude that the effective date of reactivation of Petitioner's Medicare enrollment and billing privileges is June 2, 2017. To the extent Novitas' reconsidered determination might be read as setting Petitioner's effective date of enrollment as May 23, 2008, that date is not supported by the regulations and, accordingly, I reverse it.


          /s/
        Leslie A. Weyn

                      Administrative Law Judge
      1. Technically, Petitioner in this case is the professional corporation of which Dr. Lama is the sole owner. See CMS Exhibit 2 at 2. In this decision, I use "Petitioner" collectively to refer to the individual and his corporate alter-ego. back to note 1
                      2. It is Novitas' reconsidered determination that I review in these proceedings. 42 C.F.R. § 498.5(l)(2); see also Neb Group of Arizona LLC, DAB No. 2573 at 7 (2014). 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
                      4. Petitioner's representative does not exclude the possibility that Novitas' request may have reached her email address, but was routed to a junk file. P. Br. at 1. Moreover, Petitioner's assertion that he prefers to be contacted by mail is undercut somewhat by the fact that he (or his representative) entered his representative's personal email address on his enrollment application when identifying her as the "enrollment application contact person." See CMS Ex. 2 at 4 (section #13). back to note 4 Back to top
    Contact HHS
    
                        
                                            
      
      
      Careers
    
                        
                                            
      
      
      HHS FAQs
    
                        
                                            
      
      
      Nondiscrimination NoticeHHS Archive
    
                        
                                            
      
      
      Accessibility Statement
    
                        
                                            
      
      
      Privacy Policy
    
                        
                                            
      
      
      Viewers & PlayersBudget/Performance
    
                        
                                            
      
      
      Inspector General
    
                        
                                            
      
      
      Web Site Disclaimers
    
                        
                                            
      
      
      EEO/No Fear ActFOIA
    
                        
                                            
      
      
      The White House
    
                        
                                            
      
      
      USA.gov
    
                        
                                            
      
      
      Vulnerability Disclosure Policy
        Sign Up for Email Updates

Receive the latest updates from the Secretary, Blogs, and News Releases.

Sign Up
  HHS Headquarters
          200 Independence Avenue, S.W.
                  Washington, D.C. 20201
                  Toll Free Call Center: 1-877-696-6775​ Disclaimer Policy: Links with this icon () mean that you are leaving the HHS website. The Department of Health and Human Services (HHS) cannot guarantee the accuracy of a non-federal website.
                  Linking to a non-federal website does not mean that HHS or its employees endorse the sponsors, information, or products presented on the website. HHS links outside of itself to provide you with further information.
                  You will be bound by the destination website's privacy policy and/or terms of service when you follow the link.
                  HHS is not responsible for Section 508 compliance (accessibility) on private websites. For more information on HHS's web notification policies, see Website Disclaimers.
 Continue
                  Go back