Monday, 5 December 2016

Reactivations - Deactivation for Reasons Other Than Non-Submission of a Claim

Reactivations 

Sections 15.27.1.2.1 through 15.27.2.2 below discuss the requirements for reactivating a provider or supplier’s billing privileges.  If the contractor approves a provider or supplier’s reactivation application or reactivation certification package (RCP) for a Part B non-certified supplier, the reactivation effective date shall be the date the contractor received the application or RCP that was processed to completion.  

Also, upon reactivating billing privileges for a Part B non-certified supplier, the contractor shall issue a new Provider Transaction Access Number (PTAN).  With the exception of HHAs, reactivation of Medicare billing privileges does not require a new State survey or the establishment of a new provider agreement or participation agreement. Per 42 CFR § 424.540(b)(3)(i), an HHA must undergo a new State survey or obtain accreditation by an approved accreditation organization before its billing privileges can be reactivated.  (See section 15.26.3 of this chapter for more information.)  

Reactivations - Deactivation for Reasons Other Than Non-Submission of a Claim 

A.  Background 

To reactivate its billing privileges, a provider or supplier deactivated for failing to timely notify the contractor of a change of information (see section 15.27.1.1(A) above) must either:  

1.Submit a complete Medicare enrollment application, or  

2.Recertify that its enrollment information currently on file with Medicare is correct.  

B.  Certification 

Option  1.  General Requirements  To utilize option (A)(2) above, the provider or supplier must submit to the contractor (a) a hard copy print-out of its PECOS Web enrollment data, (b) a hard copy Form CMS-855 certification statement signed and dated by the enrolled individual practitioner or, as applicable, the provider or supplier’s authorized or delegated official, and (c) a letter certifying as to the data’s accuracy.  

The letter must:  

(i) Be on the provider or supplier’s letterhead.  

(ii) List the provider or supplier’s birth name or legal business name, doing business as name (if applicable), National Provider Identifier, and the Provider Transaction Access Number(s) (PTAN) in the provider or supplier’s enrollment record to be reactivated. 

(iii) Must state that the provider is seeking to reactivate his/her/its billing privileges.  

(iv) Be signed and dated by the enrolled individual practitioner or, as applicable, the provider or supplier’s authorized or delegated official (who must be the same person who signed the Form CMS-855 certification statement).  

(v) Contain the following language:  

For Individual Practitioners 

“I, _______________, certify that all of the information contained in Medicare enrollment record (the record’s PAC ID number) is truthful and accurate.  I understand that by this statement and by my signature below, I am bound by all of the terms and conditions of the attached, signed Form CMS-855 certification statement and agree to abide by them.” 

 For Authorized/Delegated Officials 

“I, _______________, in my capacity as an authorized or delegated official of (provider/supplier), certify on behalf of (provider/supplier) that all of the information contained in (provider/supplier’s) Medicare enrollment record (the record’s PAC ID number) is truthful and accurate.  

I understand that by this statement and by my signature below, (provider/supplier) is bound by all of the terms and conditions of the attached, signed Form CMS-855 certification statement and agrees to abide by them.” 

A separate Form CMS-855 certification statement and letter must be submitted with each PECOS enrollment record (and the PTANs in that record) the provider or supplier seeks to have reactivated. 

To illustrate, suppose a supplier has three separate enrollments it wants to reactivate.  Each enrollment has its own PECOS enrollment record.  Two of the records have one PTAN; the third record contains two PTANs.  

The supplier must submit three separate PECOS Web printouts, three separate certification statements, and three separate letters. (The letter pertaining to the third enrollment record must list both PTANs.)  

The certification statement and letter should be attached to the PECOS Web printout to which it pertains – meaning, per our example, that there would be three separate “reactivation certification packages” (RCPs).  All RCPs must be submitted via mail.  They cannot be faxed or e-mailed. 

The provider or supplier cannot utilize the certification option and must submit a complete Form CMS-855 application if: 

• There is any information in the provider or supplier’s PECOS Web enrollment record that is not correct. 

• The provider or supplier cannot produce a printout of the applicable PECOS Web enrollment record (e.g., provider has no enrollment record in PECOS).  

• The provider or supplier cannot otherwise produce a valid RCP. 

 2.  Contractor Processing  

Upon receipt of an RCP, the contractor:  

• Shall ensure that it is complete and contains all of the elements identified in (B)(1) above.  If the RCP is in any way deficient or incomplete, the contractor shall develop for the missing/incomplete information or documentation consistent with existing procedures (e.g., requesting the submission of a revised letter).  

Examples of a deficient RCP include, but are not limited to, the following: 

(1) the package is missing the printout, certification statement, or letter; 
(2) the letter does not contain the required language or contains verbiage that offsets the required language; 
(3) the certification statement or letter is signed by an individual who is not on record as an authorized or delegated official; 
(4) the certification statement or letter is undated; 
(5) the letter refers to the incorrect PAC ID number.  The contractor may reject the RCP if the provider fails to furnish the requested material within 30 days of the request.  

• Shall review all names listed in the provider’s enrollment record against the Medicare Exclusion Database (MED) and the System for Award Management (SAM).   

• Shall ensure that the provider is still appropriately licensed and/or certified (e.g., the contractor can check State Web sites).  

• Consistent with section 15.19.2.4 of this chapter, shall perform a site visit if the provider is in the moderate or high screening category.  

• Reserves the right to request a full Form CMS-855 application if the contractor has reason to believe that any data in the provider’s enrollment record is inaccurate or outdated.  However, it shall obtain the approval of its CMS Provider Enrollment Business Function Lead (PEBFL) before making this request. 

The contractor need not prescreen the RCP. 

If the contractor determines that (1) the RCP complies with the requirements of this section 15.27.1.2.1(B), (2) remains appropriately licensed and/or certified, (3) none of the names in the provider or supplier’s enrollment record are excluded or debarred, (4) the provider is operational per the site visit, and (5) for HHAs, has undergone a new State survey or accreditation, the contractor may reactivate the provider’s Medicare billing privileges in accordance with existing procedures.  

If the contractor determines that any of these criteria are not met, it shall deny the reactivation application in accordance with existing procedures.  (As stated earlier, though, rejection is appropriate if the provider does not adequately respond to the provider’s developmental request.)  If the contractor believes that a denial ground other than the aforementioned exists, it shall contact its CMS Provider Enrollment Business Function Lead (PEBFL) for guidance.  

Reactivations - Deactivation for Non-Submission of a Claim 

To reactivate its billing privileges, a provider or supplier deactivated for non-billing must recertify that its enrollment information currently on file with Medicare is correct. This section 15.27.1.2.2 discusses this requirement.  

A.  All of Provider’s Data in Enrollment Record Is Correct  

1.  General Requirements  

If all of the data in the provider or supplier’s enrollment record is correct, the provider must submit to the contractor: 
(a) a hard copy print-out of its PECOS Web enrollment data, 
(b) a hard copy Form CMS-855 certification statement signed and dated by the enrolled individual practitioner or, as applicable, the provider or supplier’s authorized or delegated official, 
(c) the claim data described in section 15.27.1.2.3(B) of this chapter, and 
(d) a letter certifying as to the data’s accuracy.  

The letter must:  

(i)  Be on the provider or supplier’s letterhead. 

(ii)  List the provider or supplier’s birth name or legal business name, doing business as name (if applicable), National Provider Identifier, and the Provider Transaction Access Number(s) (PTAN) in the provider or supplier’s enrollment record to be reactivated. 

(iii)  Must state that the provider is seeking to reactivate his/her/its billing privileges.  

(iv)  Be signed and dated by the enrolled individual practitioner or, as applicable, the provider or supplier’s authorized or delegated official (who must be the same person who signed the Form CMS-855 certification statement).  

(v)  Contain the following language:  

For Individual Practitioners 

“I, _______________, certify that all of the information contained in Medicare enrollment record (the record’s PAC ID number) is truthful and accurate.  I understand that by this statement and by my signature below, I am bound by all of the terms and conditions of the attached, signed Form CMS-855 certification statement and agree to abide by them.” 

For Authorized/Delegated Officials  

“I, _______________, in my capacity as an authorized or delegated official of (Provider/Supplier), certify on behalf of (Provider/Supplier) that all of the information contained in (Provider/Supplier’s) Medicare enrollment record (the record’s PAC ID number) is truthful and accurate.  I understand that by this statement and by my signature below, (Provider/Supplier) is bound by all of the terms and conditions of the attached, signed Form CMS-855 certification statement and agrees to abide by them.” 

As explained in section 15.27.1.2.2(A), a separate Form CMS-855 certification statement and letter must be submitted with each PECOS enrollment record the provider or supplier seeks to have reactivated.  The certification statement and letter should be attached to the PECOS Web printout to which it applies.  All such “reactivation certification packages” (RCPs) must be submitted via mail.  They cannot be faxed or e-mailed.   

2.  Contractor Processing  

Upon receipt of an RCP, the contractor:  

• Shall ensure that it is complete and contains all of the elements identified in (A)(1) above.  If the RCP is in any way deficient or incomplete, the contractor shall develop for the missing/incomplete information or documentation consistent with existing procedures (e.g., requesting the submission of a revised letter).  Examples of a deficient RCP include, but are not limited to, the following: 

(1) the package is missing the printout, certification statement, or letter; 

(2) the letter does not contain the required language or contains verbiage that offsets the required language; 

(3) the certification statement or letter is signed by an individual who is not on record as an authorized or delegated official; 

(4) the certification statement or letter is undated; 

(5) the letter refers to the incorrect PAC ID number.  

The contractor may reject the RCP if the provider fails to furnish the requested material within 30 days of the request.  

• Shall review all names listed in the provider’s enrollment record against the Medicare Exclusion Database (MED) and the System for Award Management (SAM).  

• Shall ensure that the provider is still appropriately licensed and/or certified (e.g., the contractor can check State Web sites).  

• Consistent with section 15.19.2.4 of this chapter, shall perform a site visit if the provider is in the moderate or high screening category.  

The contractor need not prescreen the RCP. If the contractor determines that (1) the RCP complies with the requirements of this section 15.27.1.2.2(A), (2) remains appropriately licensed and/or certified, (3) none of the names in the provider or supplier’s enrollment record are excluded or debarred, (4) the provider (if in the moderate or high screening category) is operational per the site visit, and (5) for HHAs, the provider has undergone a new State survey or accreditation, the contractor may reactivate the provider’s Medicare billing privileges in accordance with existing procedures. 

If the contractor determines that any of these criteria are not met, it shall deny the reactivation application in accordance with existing procedures.  (Rejection is appropriate, however, if the provider does not adequately respond to the contractor’s developmental request.)  If the contractor believes that a denial ground other than the aforementioned exists, it shall contact its CMS Provider Enrollment Business Function Lead (PEBFL) for guidance.  

B. Some of Provider’s Data in Enrollment Record Is Incorrect 

1.  General Requirements  

If any data in the provider or supplier’s enrollment record is incorrect, the provider must submit to the contractor: 

(a) a hard copy print-out of its PECOS Web enrollment data, 

(b) applicable hard-copy page(s) of the Form CMS-855 containing the corrected information (e.g., new section 8 reporting a change to the billing company address), 

(c) a certification statement signed and dated by the enrolled individual practitioner or, as applicable, the provider or supplier’s authorized or delegated official, 

(d) the claim data described in section 15.27.1.2.3(B) of this chapter, and 

(e) a letter certifying as to the rest of the enrollment data’s accuracy.  

The letter must:  

(i)  Be on the provider or supplier’s letterhead.  

(ii)  List the provider or supplier’s birth name or legal business name, doing business as name (if applicable), NPI, and PTAN(s). 

(iii)  Must state that the provider is seeking to reactivate his/her/its billing privileges.  

(iv)  Be signed and dated by the enrolled individual practitioner or, as applicable, the provider or supplier’s authorized or delegated official (who must be the same person who signed the Form CMS-855 certification statement).  

(v)  Contain the following language:  

For Individual Practitioners 

“I, _______________, certify that - with the exception of (list the data elements that are currently incorrect and are being updated via the submitted Form CMS-855 pages) - all of the information currently contained in Medicare enrollment record (the record’s PAC ID number) is truthful and accurate.  I understand that by this statement and by my signature below, I am bound by all of the terms and conditions of the attached, signed Form CMS-855 certification statement and agree to abide by them.”  


For Authorized/Delegated Officials 

“I, _______________, in my capacity as an authorized or delegated official of (provider/supplier), certify on behalf of (provider/supplier) that - with the exception of (list the data elements that are currently incorrect and are being updated via the submitted Form CMS-855 pages) - all of the information contained in (provider/supplier’s) Medicare enrollment record (the record’s PAC ID number) is truthful and accurate.  I understand that by this statement and by my signature below, (provider/supplier) is bound by all of the terms and conditions of the attached, signed Form CMS-855 certification statement and agrees to abide by them.” 

As explained in section 15.27.1.2.2(B), a separate Form CMS-855 certification statement and letter must be submitted with each PECOS enrollment record the provider or supplier seeks to have reactivated.  The certification statement and letter should be attached to the PECOS Web printout to which it applies.  All RCPs must be submitted via mail.  They cannot be faxed or e-mailed.  

2.  Contractor Processing  Upon receipt of an RCP, the contractor:  

• Shall ensure that it is complete and contains all of the elements identified in (B)(1) above.  If the RCP is in any way deficient or incomplete, the contractor shall develop for the missing/incomplete information or documentation consistent with existing procedures (e.g., requesting the submission of a revised letter).  Examples of a deficient RCP include, but are not limited to, the following: 

(1) the package is missing the printout, certification statement, or letter; 

(2) the letter does not contain the required language or contains verbiage that offsets the required language; 

(3) the letter does not identify the information in the enrollment record that is incorrect; 

(4) the certification statement or letter is signed by an individual who is not on record as an authorized or delegated official; 

(5) the certification statement or letter is undated; 

(6) the letter refers to the incorrect PAC ID number.  The contractor may reject the RCP if the provider fails to furnish the requested material within 30 days of the request.  

• Shall review all names listed in the provider’s enrollment record against the MED and the SAM.    

• Shall ensure that the provider is still appropriately licensed and/or certified (e.g., the contractor can check State Web sites).  

• Consistent with section 15.19.2.4 of this chapter, shall perform a site visit if the provider is in the moderate or high screening category. 

 • Process the changed information in accordance with the instructions in this chapter.  The entire RCP transaction (including the changed data) shall, however, be processed as a revalidation. 

The contractor need not prescreen the RCP. If the contractor determines that (1) the RCP complies with the requirements of this section 15.27.1.2.2(B), (2) remains appropriately licensed and/or certified, (3) none of the names in the provider or supplier’s enrollment record are excluded or debarred, (4) the provider (if in the moderate or high screening category) is operational per the site visit, (5) all of the changed information can be processed to approval, and (6) for HHAs, the provider has undergone a new State survey or accreditation, the contractor may reactivate the provider’s Medicare billing privileges in accordance with existing procedures.  

If the contractor determines that any of these criteria are not met, it shall deny the reactivation application in accordance with existing procedures.  (Rejection is appropriate, however, if the provider does not adequately respond to the contractor’s developmental request.)  If the contractor believes that a denial ground other than the aforementioned exists, it shall contact its (PEBFL) for guidance.  

C.  PECOS Web Printout  

If the provider or supplier cannot produce a printout of the applicable PECOS Web enrollment record (e.g., provider has no enrollment record in PECOS) or cannot otherwise submit a valid RCP, it must submit a complete Form CMS-855 application in order to reactivate its Medicare billing privileges.  

Sunday, 4 December 2016

Reconsideration Requests – Certified Providers and Certified Suppliers / Administrative Law Judge (ALJ)

 Additional Appeal Levels  

A.  Administrative Law Judge (ALJ) 

Hearing  CMS, a Medicare contractor, or a supplier dissatisfied with a reconsidered determination is entitled to a hearing before an ALJ.  

The ALJ has delegated authority from the Secretary of the Department of Health and Human Services (DHHS) to exercise all duties, functions, and powers relating to holding hearings and rendering decisions.  

Such an appeal must be filed, in writing, within 60 days from receipt of the reconsideration decision.  

ALJ requests should be sent to: 

Department of Health and Human Services 
Departmental Appeals Board (DAB) Civil Remedies Division, 
Mail Stop 6132 330 
Independence Avenue, 
S.W. Cohen Bldg, 
Room G-644 Washington, 
D.C. 20201 

ATTN: CMS Enrollment Appeal (ALJ requests can also be submitted electronically at https://dab.efile.hhs.gov/.)  Failure to timely request an ALJ hearing is deemed a waiver of all rights to further administrative review.  

Upon receipt of a request for an ALJ hearing, an ALJ at the Departmental Appeals Board (DAB) will issue a letter by certified mail to the supplier, CMS and the Regional Office of General Counsel (OGC) acknowledging receipt of an appeals request and detailing a scheduled pre-hearing conference.  

The OGC will assign an attorney to represent CMS during the appeals process; he/she will also serve as the DAB point of contact. Neither CMS nor the Medicare contractor are required to participate in the prehearing conference but should coordinate among themselves and the OGC attorney prior to the pre-hearing to discuss any issues.  

The Medicare contractor shall work with and provide the OGC attorney with all necessary documentation.  This includes compiling and sending all relevant case material to the OGC attorney upon the latter’s request within 5 calendar days of said request. 

Any settlement proposals, as a result of the pre-hearing conference, will be addressed with CMS.  

B.  Departmental Appeals Board (DAB) 

Hearing  CMS, a Medicare contractor, or a supplier dissatisfied with the ALJ hearing decision may request a Board review by the DAB.  Such a request must be filed within 60 days after the date of receipt of the ALJ’s decision.  Failure to timely request a DAB review is deemed to be a waiver of all rights to further administrative review.  

The DAB will use the information in the case file established at the reconsideration level and any additional evidence introduced at the ALJ hearing to make its determination.  

The DAB may admit additional evidence into the record if the DAB considers it relevant and material to an issue before it.  Before such evidence is admitted, notice is mailed to the parties stating that evidence will be received regarding specified issues.  

The parties are given a reasonable time to comment and to present other evidence pertinent to the specified issues.  If additional information is presented orally to the DAB, a transcript will be prepared and made available to any party upon request.  

C.  Judicial Review  

A supplier dissatisfied with a DAB decision may seek judicial review by timely filing a civil action in a United States District Court.  Such a request shall be filed within 60 days from receipt of the notice of the DAB’s decision.  

Appeals Involving Certified Providers and Certified Suppliers 

Sections 15.25.2.1 through 15.25.2.3 below apply to:  

• Providers and suppliers completing the Form CMS-855A  

• Ambulatory surgical centers   

• Portable x-ray suppliers   

• Also, section 15.25.2.2 applies to reconsiderations of revocations based wholly or partially on §424.535(a)(8), regardless of provider or supplier type. 

Corrective Action Plans (CAPs) 

A.  Submission of CAPs  

The CAP process gives a provider or supplier (hereinafter collectively referred to as “providers”) an opportunity to correct the deficiencies (if possible) that resulted in the denial of its application or the revocation of its billing privileges.  

The CAP must:  
(1) Contain, at a minimum, verifiable evidence that the provider is in compliance with Medicare requirements; 
(2) Be submitted within 30 days from the date of the denial or revocation notice; 
(3) Be submitted in the form of a letter that is signed and dated by the individual supplier, the authorized or delegated official, or a legal representative.   
(4) For revocations, be based on §424.535(a)(1).  

Consistent with §405.809, CAPs for revocations based on grounds other than §424.535(a)(1) cannot be accepted.  (For revocations based on multiple grounds of which one is §424.535(a)(1), the CAP may be accepted with respect to (a)(1) but not with respect to the other grounds.)  

CMS’ Provider Enrollment & Oversight Group (PEOG), which processes all CAPs, will notify the provider if a CAP cannot be accepted. 

CAP requests must be sent to the following address:  
Centers for Medicare & Medicaid Services Center for Program Integrity Provider Enrollment & Oversight Group 7500 Security Boulevard Mailstop AR 18-50 Baltimore, MD 21244-1850 

If the contractor inadvertently receives a CAP request, it shall immediately forward it to PEOG at this address or, if possible, to the following PEOG mailbox: providerenrollmentappeals@cms.hhs.gov .  Also:  

• PEOG may make a good cause determination so as to accept any AP that has been submitted beyond the 30-day filing period.  

• The provider’s contact person (as listed in section 13 of the Form CMS-855) does not qualify as a “legal representative” for purposes of signing a reconsideration request. 

B.  Processing and Approval of CAPs 

PEOG will process a CAP within 60 days.  During this period, PEOG will not toll the filing requirements associated with a reconsideration request.  If PEOG approves a CAP, it will: (1) notify the contractor to rescind the denial or revocation and permit or restore enrollment (as applicable), and (2) notify the provider thereof via letter.  If applicable, PEOG will also notify the contractor of the effective date.  

If PEOG denies a CAP, it will notify the provider via letter (on which the contractor will be copied) of the denial and associated appeal rights.  

Reconsideration Requests – Certified Providers and Certified Suppliers 

This section 15.25.2.2 also applies to reconsiderations of revocations based wholly or partially on §424.535(a)(8), regardless of provider or supplier type.  

A.  Timeframe for Submission  

A provider that wishes to request a reconsideration must submit its request, in writing, to CMS’ Provider Enrollment & Oversight Group (PEOG) within 60 days from the supplier’s receipt of the notice of denial or revocation to be considered timely filed.  Per 42 CFR §498.22(b)(3), the date of receipt is presumed to be 5 days after the date on the notice unless there is a showing that it was, in fact, received earlier or later.  

The mailing address is:   
Centers for Medicare & Medicaid Services Center for Program Integrity Provider Enrollment & Oversight 
Group 7500 
Security Boulevard Mailstop AR-18-50 Baltimore, 
MD 21244-1850 

PEOG will extend the filing period an additional 5 days to allow for mail time.  A reconsideration request submitted on the 65 thday that falls on a weekend or holiday will still be considered timely filed. 

The date on which PEOG receives the request is considered to be the date of filing.  Failure to timely request a reconsideration is deemed a waiver of all rights to further administrative review. 

However, if a request for reconsideration is filed late, PEOG will make a finding of good cause before taking any other action on the appeal.  The time limit may be extended if good cause for late filing is shown.  

Good cause may be found when the record clearly shows or the party alleges and the record does not negate that the delay in filing was due to one of the following:  

• Unusual or unavoidable circumstances, the nature of which demonstrate that the individual could not reasonably be expected to have been aware of the need to file timely; or  • Destruction by fire, or other damage, of the individual’s records when the destruction was responsible for the delay in filing.  

B.  Signatures  

A reconsideration request must be signed by an authorized official, delegated official, or legal representative of the provider. The provider’s contact person (as listed in section 13 of the Form CMS-855) does not qualify as a “legal representative” for purposes of signing a reconsideration request.  

C.  Receipt of Reconsideration Request  

Upon receipt of a reconsideration request, PEOG will send a letter to the provider to acknowledge receipt of the request.  In its acknowledgment letter, PEOG will advise the provider that the reconsideration will be conducted and a determination issued within 90 days from the date of the request.  PEOG will include a copy of the acknowledgment letter in the reconsideration file.  If the contractor inadvertently receives a reconsideration request from a certified provider or certified supplier, it shall immediately forward it to PEOG at this address or, if possible, to the following PEOG mailbox: providerenrollmentappeals@cms.hhs.gov .  

D.  Reconsideration Determination  

As already stated, if a timely request for a reconsideration is made, PEOG will consider the request and issue a determination within 90 days of the request.  The HO must determine whether the denial or revocation is warranted based on all of the evidence presented. 

This includes:  
• The initial determination itself,   
• The findings on which the initial determination was based,   
• The evidence considered in making the initial determination, and  
• Any other written evidence submitted under § 498.24(a), taking into account facts relating to the status of the provider or supplier subsequent to the initial determination.  

If the appealing party has additional information that it would like a hearing officer to consider during the reconsideration or, if necessary, an administrative law judge to consider during a hearing, the party must submit that information with its request for reconsideration. 

This is the party’s only opportunity to submit information during the administrative appeals process; the party will not have another opportunity to do so unless an administrative law judge specifically allows the party to do so under 42 CFR §498.56(e).   The contractor may not introduce new denial or revocation reasons or change a denial or revocation reason listed in the initial determination during the reconsideration process.  

E.  Issuance of Reconsideration Decision 

PEOG will issue a written decision within 90 days of the date of the request.  It will: (1) forward the decision to the Medicare contractor via e-mail, fax, or mail, and (2) mail the decision to the provider or the individual who signed the reconsideration request.  

The reconsideration letter will include:  

• The re-stated facts and findings, including the regulatory basis for the action as determined by the contractor in its initial determination;  

• A summary of the documentation that the provider furnished;   

• A clear explanation of why PEOG is upholding or overturning the denial or revocation action in sufficient detail for the provider to understand PEOG’s decision and, if applicable, the nature of the provider’s deficiencies;  

• If applicable, the regulatory basis to support each reason for the denial or revocation;   

• If applicable, an explanation of how the provider does not meet the enrollment criteria or requirements;  

• Further appeal rights, procedures for requesting an administrative law judge (ALJ) hearing, and the address to which the written appeal must be mailed or e-mailed; and  

• Information that the provider must include with its appeal (name/legal business name; supplier number (if applicable); tax identification number/employer identification number (TIN/EIN); and a copy of the reconsideration decision).  If PEOG approves a CAP, it will: (1) notify the contractor to rescind the denial or revocation and issue or restore billing privileges (as applicable), and (2) notify the provider thereof via letter.  If applicable, PEOG will also notify the contractor of the effective date.   

F.  Withdrawal of Reconsideration Request  

The provider or the individual who signed the reconsideration request may withdraw its request at any time prior to the mailing of the reconsideration decision.  The withdrawal request must be in writing, signed, and filed with PEOG at the address in (A) above. 

Friday, 2 December 2016

CMS Additional Appeal Levels

Additional Appeal Levels 

A. Administrative Law Judge (ALJ) 
Hearing  CMS, a Medicare contractor, or a provider dissatisfied with a reconsidered determination is entitled to a hearing before an ALJ.The ALJ has delegated authority from the Secretary of the Department of Health and Human Services (DHHS) to exercise all duties, functions, and powers relating to holding hearings and rendering decisions.  Such an appeal must be filed, in writing, within 60 days from receipt of the reconsideration decision.  

ALJ requests should be sent to:  
Department of Health and Human Services 
Departmental Appeals Board (DAB) Civil Remedies Division, 
Mail Stop 6132 330 
Independence Avenue, 
S.W. Cohen Bldg, 
Room G-644 Washington, 
D.C. 20201 ATTN: CMS Enrollment Appeal 

 (ALJ requests can also be submitted electronically at https://dab.efile.hhs.gov/.)  Failure to timely request an ALJ hearing is deemed a waiver of all rights to further administrative review.  Upon receipt of a request for an ALJ hearing, an ALJ at the Departmental Appeals Board (DAB) will issue a letter by certified mail to the provider, CMS and the Regional Office of General Counsel (OGC) acknowledging receipt of an appeals request and detailing a scheduled pre-hearing conference.  

The OGC will assign an attorney to represent CMS during the appeals process; he/she will also serve as the DAB point of contact. Neither CMS nor the Medicare contractor are required to participate in the prehearing conference but should coordinate among themselves and the OGC attorney prior to the pre-hearing to discuss any issues.  

The Medicare contractor shall work with and provide the OGC attorney with all necessary documentation.  This includes compiling and sending all relevant case material to the OGC attorney upon the latter’s request within 5 calendar days of said request.  Any settlement proposals, as a result of the pre-hearing conference, will be addressed with CMS.  

B.  Departmental Appeals Board (DAB) 

Hearing  CMS, a Medicare contractor, or a provider dissatisfied with the ALJ hearing decision may request a Board review by the DAB.  Such a request must be filed within 60 days after the date of receipt of the ALJ’s decision.  Failure to timely request a DAB review is deemed to be a waiver of all rights to further administrative review.  

The DAB will use the information in the case file established at the reconsideration level and any additional evidence introduced at the ALJ hearing to make its determination.  The DAB may admit additional evidence into the record if the DAB considers it relevant and material to an issue before it.  Before such evidence is admitted, notice is mailed to the parties stating that evidence will be received regarding specified issues.  

The parties are given a reasonable time to comment and to present other evidence pertinent to the specified issues.  If additional information is presented orally to the DAB, a transcript will be prepared and made available to any party upon request.  

C.  Judicial Review  

A provider dissatisfied with a DAB decision may seek judicial review by timely filing a civil action in a United States District Court.  Such a request shall be filed within 60 days from receipt of the notice of the DAB’s decision.  

Special Provisions for HHAs 

HHA Ownership Changes 

A. Background  Effective January 1, 2011, and in accordance with 42 CFR §424.550(b)(1) - if there is a change in majority ownership of an HHA by sale (including asset sales, stock transfers, mergers, and consolidations) within 36 months after the effective date of the HHA’s initial enrollment in Medicare or within 36 months after the HHA’s most recent change in majority ownership, the provider agreement and Medicare billing privileges do not convey to the new owner. 

The prospective provider/owner of the HHA must instead:  

• Enroll in the Medicare program as a new (initial) HHA under the provisions of §424.510, and 

• Obtain a State survey or an accreditation from an approved accreditation organization.  For purposes of §424.550(b)(1), a “change in majority ownership” (as defined in 42 CFR §424.502) occurs when an individual or organization acquires more than a 50 percent direct ownership interest in an HHA during the 36 months following the HHA’s initial enrollment into the Medicare program or the 36 months following the HHA’s most recent change in majority ownership (including asset sales, stock transfers, mergers, or consolidations).  

This includes an individual or organization that acquires majority ownership in an HHA through the cumulative effect of asset sales, stock transfers, consolidations, or mergers during the 36-month period after Medicare billing privileges are conveyed or the 36-month period following the HHA’s most recent change in majority ownership.  

B. Exceptions  

There are several exceptions to §424.550(b)(1).  Specifically, the requirements of §424.550(b)(1) do not apply if:  
• The HHA has submitted 2 consecutive years of full cost reports. (For purposes of this exception, low utilization or no utilization cost reports do not quality as full cost reports.) 

• The HHA’s parent company is undergoing an internal corporate restructuring, 
such as a merger or consolidation.  

• The HHA is changing its existing business structure – such as from a corporation, a partnership (general or limited), or an LLC to a corporation, a partnership (general or limited) or an LLC - and the owners remain the same.  

• An individual owner of the HHA dies.  In addition, §424.550(b)(1) does not apply to “indirect” ownership changes.  C. Effective Date  As indicated earlier, the provisions of 42 CFR §424.550(b)(1) and (2) as enacted in “CMS-6010-F, Medicare Program; Home Health Prospective Payment System Rate Update for Calendar Year 2011; Changes in Certification Requirements for Home Health Agencies and Hospices; Final Rule” – are effective January 1, 2011.  

This means that these provisions impact only those HHA ownership transactions whose effective date is on or after January 1, 2011.  However, the provisions can apply irrespective of when the HHA first enrolled in Medicare.  Consider the following illustrations:  

• Example 1 – Smith HHA initially enrolls in Medicare effective July 1, 2009.  Smith undergoes a change in majority ownership effective September 1, 2011.  The provisions of §424.550(b)(1) apply to Smith because it underwent a change in majority ownership within 36 months of its initial enrollment.  

• Example 2 – Jones HHA initially enrolls in Medicare effective July 1, 2007.  Jones undergoes a change in majority ownership effective February 1, 2011.  Section 424.550(b)(1) does not apply to this transaction because it occurred more than 36 months after Jones’s initial enrollment.  Suppose, however, than Jones undergoes another change in majority ownership effective February 1, 2012. 

Section 424.550(b)(1) would apply to this transaction because it took place within 36 months after Jones’s most recent change in majority ownership (i.e., on February 1, 2011).  

• Example 3- Johnson HHA initially enrolls in Medicare effective July 1, 2006.  It undergoes a change in majority ownership effective October 1, 2010.  This transaction is not affected by §424.550(b)(1) – as enacted in CMS-6010-F – because: (1) its effective date was prior to January 1, 2011, and (2) it occurred more than 36 months after the effective date of Johnson’s initial enrollment.   

Johnson undergoes another change in majority ownership effective October 1, 2012.  This change would be affected by §424.550(b)(1) because it occurred within 36 months of the HHA’s most recent change in majority ownership (i.e., on October 1, 2010).  

• Example 4 – Davis HHA initially enrolls in Medicare effective July 1, 1999.  It undergoes its first change in majority ownership effective February 1, 2011.  This change is not affected by §424.550(b)(1) because it occurred more than 36 months after Davis’s initial enrollment.  

Davis undergoes another change in majority ownership effective July 1, 2014.  This change, too, would be unaffected by§424.550(b)(1), as it occurred more than 36 months after the HHA’s most recent change in majority ownership (i.e., on February 1, 2011).  

Davis undergoes another majority ownership change on July 1, 2016.  This change would be impacted by §424.550(b)(1), since it occurred within 36 months of the HHA’s most recent change in majority ownership (i.e., on July 1, 2014).  D.   Section 424.550(b)(1)’s Applicability  If the contractor receives a Form CMS-855A application reporting an HHA ownership change (and unless a CMS instruction or directive states otherwise), it shall undertake the following steps:  

1. Step 1 – Change in Majority Ownership  The contractor shall determine whether a change in direct majority ownership has occurred.  Through its review of the transfer agreement, sales agreement, bill of sale, etc., the contractor shall verify whether:  

• The ownership change was a direct ownership change and not a mere indirect ownership change, and  

• The change involves a party assuming a greater than 50 percent ownership interest in the HHA.  Assumption of a greater than 50 percent direct ownership interest can generally occur in one of three ways.  First, an outside party that is currently not an owner can purchase more than 50 percent of the business in a single transaction.  Second, an existing owner can purchase an additional interest that brings its total ownership stake in the business to greater than 50 percent.  

For instance, if a 40 percent owner purchased an additional 15 percent share of the HHA, this would constitute a change in majority ownership.  This is consistent with the verbiage in the aforementioned definition of “change in majority ownership” regarding the “cumulative effect” of asset sales, transfers, etc. 

Another example of a change in majority ownership would be if a 50 percent owner obtains any additional amount of ownership (regardless of the percentage) and hence becomes a majority owner; thus, for instance, if a 50 percent owner were to acquire an additional .001 percent ownership stake, he or she becomes a majority owner and the transaction involves a change in majority ownership.  

If the transfer does not qualify as a change in majority ownership, the contractor can process the application normally.  If it does qualify, the contractor shall proceed to Step 2:  2. Step 2 – 36-Month Period  The contractor shall determine whether the effective date of the transfer is within 36 months after the effective date of the HHA’s: 

(1) initial enrollment in Medicare, or 

(2) most recent change in majority ownership.  

The contractor shall verify the effective date of the reported transfer by reviewing a copy of the transfer agreement, sales agreement, bill of sale, etc., rather than relying upon the date of the sale as listed on the application. It shall also review its records – and, if necessary, request additional information from the HHA – regarding the effective date of the HHA’s most recent change in majority ownership, if applicable.  

If the effective date of the transfer does not fall within either of the aforementioned 36month periods, the contractor may process the application normally.  If the transfer’s effective date falls within one of these timeframes, the contractor shall proceed to Step 3.  

3. Step 3 – Applicability of Exceptions  If the contractor determines that a change in majority ownership has occurred within either of the above-mentioned 36-month periods, the contractor shall also determine whether any of the exceptions in §424.550(b)(2) apply.  As alluded to earlier, the exceptions are as follows:  

a. The HHA has submitted 2 consecutive years of full cost reports.  
• For purposes of this exception, low utilization or no utilization cost reports do not qualify as full cost reports.  As stated in CMS Pub. 15-2, Provider Reimbursement Manual, Part 2, section 3204, please refer to 42 CFR §413.24(h) for a definition of low Medicare utilization. 

 • The cost reports must have been: (1) consecutive, meaning that they were submitted in each of the 2 years preceding the effective date of the transfer, and (2) accepted by the contractor.  

b. The HHA’s parent company is undergoing an internal corporate restructuring, such as a merger or consolidation.  

c. The HHA is changing its existing business structure – such as from a corporation, a partnership (general or limited), or an LLC to a corporation, a partnership (general or limited) or an LLC - and the owners remain the same.  

• If the HHA is undergoing a change in business structure other than those which are specifically mentioned in this exemption (e.g., corporation to an LLC), the contractor shall contact its Provider Enrollment & Oversight Group Business Function Lead (PEOG BFL) for guidance.  

• For the exemption to apply, the owners must remain the same.  

d. An individual owner of the HHA dies – regardless of the percentage of ownership the person had in the HHA.  

E.  Determination  If the contractor concludes that one of the aforementioned exceptions applies (and unless a CMS instruction or directive states otherwise), it may process the application normally.  

If no exception applies, the contractor shall refer the case to its PEOG BFL for review.  Under no circumstances shall the contractor take action against the HHA without the prior approval of PEOG.  

If PEOG agrees with the contractor’s determination, the contractor shall send a letter to the HHA notifying it that, as a result of §424.550(b)(1), the HHA must:  

• Enroll as an initial applicant; and  

• Obtain a new state survey or accreditation after it has submitted its initial enrollment application and the contractor has made a recommendation for approval to the State/RO.  

As the new owner must enroll as a new provider, the contractor shall also deactivate the HHA’s billing privileges if the sale has already occurred.  If the sale has not occurred, the contractor shall alert the HHA that it must submit a Form CMS-855A voluntary termination application.   

Providers and/or their representatives (e.g., attorneys, consultants) shall contact their local MAC with any questions concerning (1) the 36-month rule in general and (2) whether the rule and/or its exceptions apply in a particular provider’s case.    

F.  Additional Notes  

The contractor is advised of the following: 

1. If the contractor learns of an HHA ownership change by means other than the submission of a CMS-855A application, it shall notify its PEOG BFL immediately.  

2. If the contractor determines, under Step 3 above, that one of the §424.550(b)(2) exceptions applies, the ownership transfer still qualifies as a change in majority ownership for purposes of the 36-month clock.  

To illustrate, assume that an HHA initially enrolled in Medicare effective July 1, 2010.  It undergoes a change in majority ownership effective February 1, 2012.  The contractor determined that the transaction was exempt from §424.550(b)(1) because the HHA submitted full cost reports in the previous 2 years.  On February 1, 2014, the HHA undergoes another change in majority ownership that did not qualify for an exception.  

The HHA must enroll as a new HHA under §424.550(b)(1) because the transaction occurred within 36 months of the HHA’s most recent change in majority ownership - even though the February 2012 change was exempt from §424.550(b)(1).  

Capitalization 

A. Background  

Effective January 1, 2011, and pursuant to 42 CFR §489.28(a) and §424.510(d)(9), an HHA entering the Medicare program - including a new HHA as a result of a change of ownership if the change of ownership results in a new provider number being issued - must have available sufficient funds, which we term initial reserve operating funds, at (1) the time of application submission, and (2) all times during the enrollment process, to operate the HHA for the three-month period after Medicare billing privileges are conveyed by the Medicare contractor (exclusive of actual or projected accounts receivable from Medicare).  

This means that the HHA must also have available sufficient initial reserve operating funds during the 3-month period following the conveyance of Medicare billing privileges.  

B. Points of Review  

At a minimum, the contractor shall verify that the HHA meets the required amount of capitalization:  
1. Prior to making its recommendation for approval;  
2. After a recommendation for approval is made but before the RO review process is completed;  
3. After the RO review process is completed but before the contractor conveys Medicare billing privileges to the HHA; and   
4. During the 3-month period after the contractor conveys Medicare billing privileges to the HHA.  

The HHA must submit proof of capitalization within 30 calendar days of being requested to do so by the contractor.  Should the HHA fail to furnish said proof and billing privileges have not yet been conveyed, the contractor shall deny the HHA’s application pursuant to §424.530(a)(8)(i) or (ii), as applicable.  

If billing privileges have been conveyed, the contractor shall revoke the HHA’s billing privileges per §424.535(a)(11).  Should the contractor believe it is necessary to verify the HHA’s level of capitalization more than once within a given period, e.g., more than once between the time a recommendation is made and the completion of the RO review process – the contractor shall seek approval from its DPSE liaison.  

C.  Determining Initial Reserve Operating Funds  

Initial reserve operating funds are sufficient to meet the requirement of 42 CFR §489.28(a) if the total amount of such funds is equal to or greater than the product of the actual average cost per visit of 3 or more similarly situated HHAs in their first year of operation (selected by CMS for comparative purposes) multiplied by the number of visits projected by the HHA for its first 3 months of operation--or 22.5 percent (one fourth of 90 percent) of the average number of visits reported by the comparison HHAs-whichever is greater.  

The contractor shall determine the amount of the initial reserve operating funds using reported cost and visit data from submitted cost reports for the first full year of operation from at least 3 HHAs that the contractor serves that are comparable to the HHA that is seeking to enter the Medicare program.  Factors to be used in making this determination shall include:  

• Geographic location and urban/rural status; 
• Number of visits;  
• Provider-based versus free-standing status; and  
• Proprietary versus non-proprietary status. 

The determination of the adequacy of the required initial reserve operating funds is based on the average cost per visit of the comparable HHAs, by dividing the sum of total reported costs of the HHAs in their first year of operation by the sum of the HHAs' total reported visits. The resulting average cost per visit is then multiplied by the projected visits for the first 3 months of operation of the HHA seeking to enter the program, but not less than 90 percent of average visits for a 3-month period for the HHAs used in determining the average cost per visit.  

D.  Proof of Operating Funds  

The HHA must provide CMS with adequate proof of the availability of initial reserve operating funds.  Such proof, at a minimum, must include a copy of the statement(s) of the HHA's savings, checking, or other account(s) that contains the funds, accompanied by an attestation from an officer of the bank or other financial institution that the funds are in the account(s) and that the funds are immediately available to the HHA.  

In some cases, an HHA may have all or part of the initial reserve operating funds in cash equivalents. For the purpose of this section, cash equivalents are short-term, highly liquid investments that are readily convertible to known amounts of cash and that present insignificant risk of changes in value.  

A cash equivalent that is not readily convertible to a known amount of cash as needed during the initial 3-month period for which the initial reserve operating funds are required does not qualify in meeting the initial reserve operating funds requirement.  Examples of cash equivalents for the purpose of this section are Treasury bills, commercial paper, and money market funds.  As with funds in a checking, savings, or other account, the HHA also must be able to document the availability of any cash equivalents. 

CMS may later require the HHA to furnish another attestation from the financial institution that the funds remain available, or, if applicable, documentation from the HHA that any cash equivalents remain available, until a date when the HHA will have been surveyed by the State agency or by an approved accrediting organization. 

The officer of the HHA who will be certifying the accuracy of the information on the HHA's cost report must certify what portion of the required initial reserve operating funds constitutes non-borrowed funds, including funds invested in the business by the owner.  That amount must be at least 50 percent of the required initial reserve operating funds.  

The remainder of the reserve operating funds may be secured through borrowing or line of credit from an unrelated lender.  

E. Borrowed Funds  

If borrowed funds are not in the same account(s) as the HHA's own non-borrowed funds, the HHA also must provide proof that the borrowed funds are available for use in operating the HHA, by providing, at a minimum, a copy of the statement(s) of the HHA's savings, checking, or other account(s) containing the borrowed funds, accompanied by an attestation from an officer of the bank or other financial institution that the funds are in the account(s) and are immediately available to the HHA. 

As with the HHA's own (that is, non-borrowed) funds, CMS later may require the HHA to establish the current availability of such borrowed funds, including furnishing an attestation from a financial institution or other source, as may be appropriate, and to establish that such funds will remain available until a date when the HHA will have been surveyed by the State agency or by an approved accrediting organization. 

F.  Line of Credit  

If the HHA chooses to support the availability of a portion of the initial reserve operating funds with a line of credit, it must provide CMS with a letter of credit from the lender. CMS later may require the HHA to furnish an attestation from the lender that the HHA, upon its certification into the Medicare program, continues to be approved to borrow the amount specified in the letter of credit.  

G.  Documents  

As part of ensuring the prospective HHA’s compliance with the capitalization requirements, the contractor shall obtain the following from the provider:  

• A document outlining the provider’s projected budget – preferably, a full year’s budget broken out by month 

• A document outlining the number of anticipated visits - preferably a full year broken out by month  

• An attestation statement from an officer of the HHA defining the source of funds 

• Copies of bank statements, certificates of deposits, etc., supporting that cash is available (must be current)  

• Letter from officer of the bank attesting that funds are available  

• If available, audited financial statements  The contractor shall also ensure that the capitalization information in section 12,of the CMS-855A is provided.  

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