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# Elizabeth Smelik, DAB CR5823 (2021)

----

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

## Elizabeth Smelik,(PTAN: 2505898)(NPI: 1992947139),Petitioner,

## v.

## Centers for Medicare & Medicaid Services.

### Docket No. C-19-371Decision No. CR5823February 23, 2021

### DECISION

Petitioner, Elizabeth Smelik, is a physical therapist, practicing in North Carolina, who participates in the Medicare program as a supplier of services.  Her Medicare billing privileges were deactivated, and she subsequently reenrolled in the program.  The Centers for Medicare & Medicaid Services (CMS) granted her application, with an effective date of July 29, 2018, resulting in a coverage gap from June 8 through July 28, 2018.

Petitioner’s enrollment was deactivated because she did not respond to the Medicare contractor’s request that she revalidate.  Petitioner maintains that she did not receive the letter directing her to do so; she learned that her enrollment was deactivated when the contractor began to deny her claims for reimbursement.  She asks that the effective date for her reenrollment be changed to June 8, 2018.  My authority, however, is too limited to grant Petitioner the relief she seeks. 

Because Petitioner filed her subsequently-approved enrollment application on July 29, 2018, I find that July 29 is the correct effective date for her reenrollment.  

Page 2

### Background

In a notice letter dated October 2, 2018, the Medicare contractor, Palmetto GBA, advised Petitioner that it approved her Medicare enrollment application with a gap in billing privileges from June 1 through July 28, 2018.  CMS Ex. 5.1  Petitioner requested reconsideration.  CMS Ex. 6.  

In a reconsidered determination, dated December 17, 2018, the contractor changed the date of the deactivation from June 1 to June 8, 2018, but otherwise affirmed the initial determination.  CMS Ex. 1.  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 Prehearing Order at 3, 5 (¶¶ 4(c)(iv), 8) (Jan. 30, 2019).  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 six exhibits (CMS Exs. 1-6).  Petitioner submits a response (P. Br.) with seven exhibits (P. Exs. 1-7).  In the absence of any objections, I admit into evidence CMS Exs. 1-6 and P. Exs. 1-7.  *See* Acknowledgment and Pre-hearing Order at 5 (¶ 7).

### Discussion

***On July 29, 2018, Petitioner filed her subsequently-approved application to reactivate her billing privileges, and the effective date can be no earlier than that date.  42 C.F.R. § 424.520(d).***2

**Enrollment**.  Petitioner Smelik 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.  Act § 1834(j)(1)(A); 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.  

Page 3

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‐approved paper application or an electronic process approved by the Office of Management and Budget.  42 C.F.R. § 424.502.3  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 “the 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 her billing privileges, a supplier must, at least every five years, resubmit and recertify the accuracy of her 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 her 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 her enrollment information, CMS may deactivate her billing privileges, and no Medicare payments will be made.  42 C.F.R. §§ 424.540(a)(3), 424.555(b).  To reactivate her 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*,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 January 5, 2018, the contractor advised Petitioner to revalidate her Medicare enrollment by updating or confirming the information in her record.  The letter directed her to revalidate, no later than March 31, 2018, by updating her information through PECOS or by submitting an updated paper application (Form CMS-855).  The letter warned that the contractor could

Page 4

deactivate Petitioner’s Medicare enrollment if she did not respond.  CMS Ex. 3.  The contractor sent the notice to the correspondence address listed in Petitioner’s Medicare enrollment file.  *Compare* CMS Ex. 2 at 3, *with* CMS Ex. 3 at 4. 

Petitioner did not respond. 

In a notice, dated June 8, 2018, the contractor advised Petitioner that her billing privileges were stopped, effective June 8, 2018, because she had not revalidated her enrollment record or had not responded to the contractor’s request for more information.  The notice instructed Petitioner to revalidate her enrollment record through PECOS or to submit an updated paper enrollment application, Form CMS-855.  CMS Ex. 4. 

On**July 29, 2018,** Petitioner filed a Medicare enrollment application via PECOS, which the contractor subsequently approved.  CMS Exs. 2, 5.  Thus, pursuant to section 424.520(d), the date Petitioner filed her subsequently-approved enrollment application – July 29, 2018 – is the correct effective date of enrollment.  *Sokoloff,* DAB No. 2972; *Urology Grp.*, DAB No. 2860; *Goffney,* DAB No. 2763 at 7, *aff’d*,No. CV 17-8032 MRW.

Petitioner, however, complains about the deactivation of her enrollment.  She claims that she did not receive the contractor’s notice letter because she had recently divorced and moved to a new address.  The contractor should have sent a copy of the letter to her employer (as it often did) but did not do so.  I simply have no authority to review the deactivation nor to grant Petitioner the relief she seeks.  *Sokoloff*, DAB No. 2972 at 6; *Ark. Health Grp*., DAB No. 2929 at 7-9, and cases cited therein.

### Conclusion

Because Petitioner filed her subsequently-approved reenrollment application on July 29, 2018, CMS properly granted her Medicare reenrollment effective that date.

Carolyn Cozad HughesAdministrative Law Judge

                                              1. The June 1 date was an error; Petitioner’s gap in billing privileges began June 8, 2018. 
                            - back to note 1
                                                  2. I make this one finding of fact/conclusion of law. 
                            - back to note 2
                                                  3.  CMS’s electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System). 
                            - back to note 3