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                              Marcia Elfenbaum, M.D., and Marcia Elfenbaum, M.D. Inc., DAB CR5427 (2019)
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Marcia Elfenbaum, M.D., and Marcia Elfenbaum, M.D. Inc., DAB CR5427 (2019)








  
  
    

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





Marcia Elfenbaum, M.D., and Marcia Elfenbaum, M.D. Inc.,
	(PTANs: DK870Y, FV388A / NPIs: 1184640583, 1083987051),
	Petitioner,
v.
Centers for Medicare & Medicaid Services
Docket No. C-18-150Decision No. CR5427September 20, 2019

        
              
    

      DECISION
Noridian Healthcare Solutions, Inc. (Noridian), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), reactivated the Medicare billing privileges of Marcia Elfenbaum, M.D., and Marcia Elfenbaum, M.D. Inc. (jointly, Petitioner), effective May 17, 2017.  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 May 17, 2017, it correctly determined that the effective date for Petitioner’s reactivated billing privileges is May 17, 2017.  Therefore, I affirm the effective date determination.
I. Background
By letter dated October 14, 2016, Noridian informed Petitioner that she must revalidate her Medicare enrollment by December 31, 2016.  CMS Exhibit (Ex.) 1 at 1.  Noridian’s revalidation request explained the consequences of failing to revalidate timely:
Failure to respond to this notice will result in a hold on your payments, and possible deactivation of your Medicare
Page 2
enrollment.  If you are a non‐certified provider or supplier, and your enrollment is deactivated, you will maintain your original PTAN, however, you will not be paid for services rendered during the period of deactivation.
*Id.* Petitioner submitted a revalidation application, which Noridian received on January 3, 2017.  CMS Ex. 2 at 1-88, 43.  In a letter dated January 18, 2017, Noridian requested that Petitioner provide additional information.  *Id*. at 89-91.  On February 3, 2017, Petitioner sent additional information to Noridian via fax.  CMS Ex. 3 at 1-36.  By letter dated February 9, 2017, Noridian again requested further information and specified that it needed to receive the information by February 17, 2017.  *Id*. at 37-38.  Petitioner does not dispute that she received the February 9, 2017 letter from Noridian, or assert that she responded to it.  Petitioner’s Brief (P. Br.) at 4-5; P. Ex. 13 at 2.
Subsequently, Noridian deactivated Petitioner’s billing privileges effective February 21, 2017.  CMS Ex. 4.  Petitioner submitted a second application to revalidate her Medicare enrollment using the Provider Enrollment, Chain and Ownership System (PECOS).  *See*CMS Ex. 5.  Noridian received the application on March 25, 2017.  *Id.*at 1.  By email on April 11, 2017, Noridian requested that Petitioner submit additional information by May 11, 2017.  *Id*. at 5-6.  Petitioner represents that she submitted additional information to Noridian on or about April 24 and May 4, 2017.  P. Br. at 5-6; P. Ex. 1 at 2; *see also*P. Ex. 13 at 3.
By letter dated May 12, 2017, Noridian notified Petitioner that it was rejecting her March 25, 2017 application.  CMS Ex. 5 at 7-9.  Petitioner submitted a third revalidation application through PECOS, which Noridian received May 17, 2017.  CMS Ex. 6 at 1.  Noridian ultimately approved the application.  *See*CMS Ex. 7.  In its approval letter, Noridian specified that there was a lapse in Petitioner’s Medicare billing privileges from February 21, 2017, through May 16, 2017.  *Id*. at 1.
Petitioner requested reconsideration of the determination that her Medicare billing privileges were reactivated effective May 17, 2017.  CMS Ex. 8.  On September 28, 2017, Noridian issued a reconsidered determination concluding that May 17, 2017, was the correct effective date of reactivation.  CMS Ex. 9.
Petitioner requested a hearing before an administrative law judge and the case was assigned to me.  I issued an Acknowledgement 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.  Pre-Hearing Order ¶ 4.  CMS filed its brief (CMS Br.), which incorporated a motion to dismiss Petitioner’s request for hearing and a motion for summary judgment, as well as nine proposed exhibits (CMS Exs. 1-9).  Petitioner, through counsel, filed a brief opposing CMS’s motion to dismiss and CMS’s motion for summary judgment (P. Br.).  Petitioner also offered thirteen exhibits (P. Exs. 1-13),
Page 3
including her written direct testimony (P. Ex. 13), as part of her pre-hearing exchange.  Neither party objected to the exhibits offered by the opposing party.  Therefore, in the absence of objection, I admit CMS Exs. 1-9 and P. Exs. 1-13.  As stated 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.  Although Petitioner offered her written direct testimony, CMS did not request to cross-examine her.  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 May 17, 2017, as the effective date of reactivation of Petitioner’s Medicare enrollment and billing privileges.
III. Jurisdiction
As explained in greater detail below, I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(*l*)(2); *see also*42 U.S.C. § 1395cc(j)(8).
IV. Discussion
**A. Applicable Legal Authority**
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.  As relevant here, 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.
Page 4
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 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 Law1**
***1. I deny******CMS’s Motion to Dismiss.***
CMS moved to dismiss Petitioner’s request for hearing (RFH) or, in the alternative, for summary judgment.  In support of the motion to dismiss, CMS argues that Petitioner is seeking reimbursement of denied Medicare claims, and such denials are not “initial determinations” that I have the authority to review under 42 C.F.R. § 498.3.  CMS Br. at 4-6.  In support, CMS points out that Petitioner’s request for reconsideration sought “**reconsideration of payments of denied Medicare claims** dating from February 21, 2017 through May 16, 2017.”  *Id.*at 5 (emphasis in original) (quoting CMS Ex. 8 at 3 (Petitioner’s request for reconsideration, dated July 8, 2017)).
Whatever Petitioner may have intended by the quoted language in her request for reconsideration, it is clear that Noridian issued a reconsidered determination, dated September 28, 2017, concerning the effective date of reactivation of Petitioner’s Medicare enrollment and billing privileges.2
 CMS Ex. 9.  The reconsidered determination does not address Petitioner’s denied claims, other than to state that the gap
Page 5
in Petitioner’s billing privileges cannot be removed.  *Id.* In response, Petitioner filed her request for hearing, which specifically states that she is appealing Noridian’s September 28, 2017 reconsideration and includes contentions relating to the reactivation of her billing privileges.  For example, she argues that “extenuating circumstances . . . delayed the submission of [her] revalidation application prior to the deadline.”  RFH at 1.  I find that Petitioner’s hearing request is sufficient to invoke her right to review of the effective date of reactivation of her Medicare billing privileges, an issue which I have the authority to decide.  42 C.F.R. §§ 498.3(b)(15), 498.5(*l*)(2).  Therefore, I deny CMS’s motion to dismiss Petitioner’s hearing request.  However, for the reasons explained below, I conclude that Noridian correctly set the effective date of reactivation of Petitioner’s Medicare enrollment and billing privileges.
**2. *Noridian received Petitioner’s application to revalidate her Medicare billing privileges on May 17, 2017, and approved that application.***
***3. The effective date of reactivation for Petitioner’s Medicare billing privileges is May 17, 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).
Noridian received a revalidation application from Petitioner via PECOS on May 17, 2017.  CMS Ex. 6 at 1.  Noridian approved that application.  CMS Ex. 7.  Accordingly, as required by regulation, the effective date of reactivation of Petitioner’s Medicare enrollment is May 17, 2017.
In support of her position that I should grant her an earlier effective date of reactivation, Petitioner argues that she lacked notice that Noridian had deactivated her enrollment and billing privileges.  As I explain in the following section of this decision, Petitioner’s argument concerns an issue that is beyond my jurisdiction to hear and decide.
***4. I have no authority to review the deactivation of Petitioner’s Medicare billing privileges on February 21, 2017.***
Petitioner implicitly acknowledges that her hearing request is, in essence, a challenge to the deactivation of her billing privileges.  P. Br. at 13 (“Petitioner seeks a new effective date for the reactivation of Petitioner’s Medicare billing privileges on the grounds that [CMS] failed to give proper notice of deactivation on February 21, 2017.”).  However, I
Page 6
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).
Petitioner contends that her Medicare enrollment and billing privileges should not have been deactivated from February 21 to May 16, 2017, because Noridian failed to notify her timely of the deactivation.  Petitioner represents that, although CMS began denying Petitioner’s claims for reimbursement on February 21, 2017, “[n]o notice was sent regarding Noridian’s initial determination to revoke [Petitioner’s] Medicare billing privileges at this time.”  P. Br. at 5.  Petitioner represents that she first learned CMS was denying her claims on March 24, 2017, and “it appears that formal notice of deactivation was only sent to Petitioner on or about December 11, 2017.”  P. Br. at 5, 12.  While it is true that Noridian’s letter notifying Petitioner of the deactivation is dated December 11, 2017 (CMS Ex. 4 at 1), CMS represents that this date is erroneous and that Petitioner was notified of the deactivation of her billing privileges on or about February 21, 2017 (CMS Br. at 3 n.1).
On the record before me, I am unable to make a finding as to when Petitioner received actual notice that her Medicare enrollment and billing privileges had been deactivated.  Yet, even assuming that Petitioner did not receive notice that her billing privileges were deactivated until March 24, 2017, as she asserts, that fact would not be a basis to grant her an earlier effective date.  That is because the date Petitioner was notified is only relevant, if at all, to whether Noridian acted properly in deactivating Petitioner’s billing privileges.  However, as I have noted above, deactivation is not an initial determination that I may review.  As an appellate panel of the Departmental Appeals Board (DAB) observed in *James Shepard, M.D.*, DAB No. 2793 (2017), providers and suppliers may not challenge indirectly an action for which the regulations prohibit direct administrative review.  *Id.* at 8.  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. For the same reasons articulated by the panel in *Shepard*, Petitioner’s arguments in the present case amount to a backdoor challenge to a contractor determination—here, deactivation—for which there are no administrative appeal rights.  *See id.*
Finally, to the extent Petitioner contends I should grant her 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., Cent. Kan. Cancer Inst.*, DAB No. 2749 at 10 (2016); *see also Shepard*, DAB No. 2793 at 9.
Page 7
Conclusion
For the reasons explained above, I deny CMS’s motion to dismiss.  However, I enter judgment on the record affirming Noridian’s determination, on behalf of CMS, that the effective date of reactivation of Petitioner’s Medicare enrollment and billing privileges is May 17, 2017.  CMS’s motion for summary judgment is denied as moot.


          /s/
        Leslie A. Weyn

                      Administrative Law Judge
      1. My findings of fact and conclusions of law appear as numbered headings in bold italic type. back to note 1
                      2. A supplier’s right to administrative law judge review flows from the reconsidered determination. 42 C.F.R. § 498.5(l)(2); see also Neb Grp. of Ariz. LLC, DAB No. 2573 at 7 (2014). back to note 2 Back to top
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