Arthur L. Jenkins III, M.D. and Jenkins NeuroSpine LLC, DAB CR5787 (2020)

DECISION

National Government Services (NGS), a Medicare administrative contractor for the Centers for Medicare and Medicaid Services (CMS), approved the enrollment application of Arthur L. Jenkins III, M.D. (Dr. Jenkins) and Jenkins NeuroSpine LLC (NeuroSpine) (collectively Petitioners), effective October 22, 2018, with retroactive billing privileges effective September 22, 2018.1  Petitioners requested a hearing before an administrative law judge because they seek an earlier effective date.  Because NGS approved Petitioners’ enrollment application that was received on October 22, 2018, it correctly determined Petitioners’ effective date of enrollment to be October 22, 2018.  NGS exercised its discretion to grant Petitioners retroactive billing privileges beginning on September 22, 2018.  Therefore, I affirm the effective date determination.

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I.  Background

Dr. Jenkins is a neurosurgeon licensed and practicing in New York.  See, e.g., CMS Exhibit (Ex.) 19 at 8, 10.  In November 2017, he established NeuroSpine as a professional service limited liability company.  See, e.g., Petitioners’ (P.) Exs. 1, 3.  Also in November 2017, Dr. Jenkins applied to enroll in Medicare as a supplier.  To do so, he submitted a Medicare enrollment application (Form CMS-855I) which NGS received on November 21, 2017.  CMS Ex. 1 at 1, 10.  With that application, Dr. Jenkins submitted an electronic funds transfer (EFT) agreement in which he identified “Arthur L. Jenkins III MD LLP” as the “Biller Legal Business Name” for EFT purposes.  Id. at 3.

By letter dated January 17, 2018, NGS acknowledged Dr. Jenkins’ application and requested additional information.  CMS Ex. 2 at 1.  Among other items, NGS requested clarification because it could find no record that “Arthur L Jenkins III MD, LLP” was incorporated or authorized to do business in New York State.  Id. at 3.  NGS’s letter warned, “We may reject your application(s) if you do not furnish complete information within 30 calendar days from the postmarked date of this letter pursuant to 42 CFR § 424.525.”  Id. at 1.

On or around February 14, 2018, Dr. Jenkins responded to NGS’s information request.  See CMS Ex. 3 at 12.  The response consisted of revised pages to the CMS-855I in which Dr. Jenkins identified himself as the sole owner of NeuroSpine, through which he intended to bill Medicare.  Id. at 7.  The revised pages did not reference “Arthur L. Jenkins III MD LLP.”  Apparently concluding that Dr. Jenkins’ revisions were non-responsive or otherwise incomplete, NGS rejected the November application in a letter dated February 28, 2018.  CMS Ex. 4.

This was the beginning of a lengthy bureaucratic journey for Petitioners.  In March and August of 2018, Dr. Jenkins again tried unsuccessfully to enroll in Medicare.  CMS Exs. 5, 10.  In the March application, Dr. Jenkins identified his corporate practice as “Arthur Jenkins M.D. LLC.”  CMS Ex. 5 at 7.  In the August application, Dr. Jenkins referred to his corporate practice as “Arthur L. Jenkins III MD LLC.”  NGS again rejected the applications following numerous attempts to obtain additional information via a series of development letters.  CMS Exs. 2-4, 6-9, and 11-17.  At least in part, NGS seems to have rejected the applications because it could not establish that Dr. Jenkins’ corporation was authorized to practice in New York.  See, e.g., CMS Ex. 11 at 3 (“the group could not be confirmed on the New York state corporation website”).2

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Meanwhile, parallel to Dr. Jenkins’ efforts to enroll in Medicare, counsel for Petitioners was attempting to obtain authorization from New York State authorities for NeuroSpine to practice as a professional service limited liability company.  See P. Exs. 1-8.  It was not until August 3, 2018, that NeuroSpine received the required authorization.  Petitioners’ Brief (P. Br.) at 5.

Finally, Dr. Jenkins submitted a fourth enrollment application, which NGS received on October 22, 2018.  CMS Ex. 19 at 1.  In the October application, Dr. Jenkins stated that he would be reassigning his Medicare billing privileges to NeuroSpine.  Id. at 17.  By letter dated December 6, 2018, NGS approved Petitioners’ enrollment application, effective October 22, 2018, with retroactive billing privileges effective September 22, 2018.  CMS Ex. 20.

By fax on December 14, 2018, Petitioners requested reconsideration of NGS’s initial determination, contending that the effective date of enrollment should have been January 1, 2018.  CMS Ex. 21.  By letters dated January 22, 2019, NGS issued reconsidered determinations denying Petitioners’ request for an earlier effective date.  CMS Ex. 23.

Petitioners timely requested a hearing before an administrative law judge to challenge NGS’s unfavorable reconsidered determinations.  I was designated to hear and decide this case.  On March 22, 2019,3 I issued an Acknowledgment and Pre-Hearing Order (Pre‑Hearing Order) that required the parties to file a pre-hearing exchange consisting of a brief, including any Motion to Dismiss or Motion for Summary Judgment, along with any supporting documents.  Pre-Hearing Order ¶ 4.  The Pre-Hearing Order also required the parties to exchange the written direct testimony of any proposed witness.  Pre‑Hearing Order ¶ 8.

CMS timely filed its Pre-Hearing Brief (CMS Br.), which incorporated a motion for summary judgment, and twenty-three proposed exhibits (CMS Exs. 1-23).  Petitioners filed their brief and twelve proposed exhibits (P. Exs. 1-12).  Neither party objected to the exhibits proposed by the opposing party.  Therefore, in the absence of objection, I admit CMS Exs. 1-23 and P. Exs. 1-12 into the record.

CMS did not offer the written direct testimony of any witness.  Petitioners offered the written direct testimony of two witnesses.  P. Exs. 11, 12.  As I informed the parties in my Pre-Hearing Order, “An 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.  CMS did not request to cross-examine Petitioners’ proposed witnesses.  Therefore, an in-person hearing is not necessary, and I decide this case based on the parties’ written submissions, without regard to whether the

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standards for summary judgment are satisfied.  I deny CMS’s motion for summary judgment as moot.

II.  Issue

The issue in this case is whether NGS, acting on behalf of CMS, properly established October 22, 2018, as the effective date of Petitioners’ enrollment in the Medicare program.

III.  Jurisdiction

I have jurisdiction to hear and 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)).

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 and may permit retrospective billing as provided in 42 C.F.R. § 424.521. 

To qualify for Medicare enrollment, suppliers must provide documentation concerning “all applicable Federal and State licenses” and “[d]ocumentation associated with regulatory and statutory requirements necessary to establish a provider’s or supplier’s eligibility to furnish Medicare covered items or services to beneficiaries in the Medicare program.”  42 C.F.R. § 424.510(d)(2)(iii).  Suppliers must be in compliance with Title XVIII of the Act and applicable Medicare regulations as well as federal and state

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licensure, certification, and regulatory requirements, based on the type of services or supplies the supplier will furnish and bill Medicare.  42 C.F.R. § 424.516(a)(1)-(2). 

CMS “may reject” an enrollment application if a supplier “fails to furnish complete information on the provider/supplier enrollment application within 30 calendar days from the date of the contractor request for the missing information.”  42 C.F.R. § 424.525(a)(1); see also 42 C.F.R. § 424.502 (definition of Reject/Rejected).  CMS may extend the 30-day period before rejecting an application “if CMS determines that the . . . supplier is actively working with CMS to resolve any outstanding issues.”  42 C.F.R. § 424.525(b).  However, CMS’s (or the contractor’s) decision to either reject the application or extend the period for submitting information is a matter of discretion that is not subject to appeal.  42 C.F.R. § 424.525(d).

B.  Findings of Fact and Conclusions of Law4

1. On October 22, 2018, NGS received Petitioners’ application to enroll in Medicare and subsequently approved that application.

2. Petitioners’ effective date of Medicare enrollment is October 22, 2018, with retrospective billing privileges as of September 22, 2018.

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).  When a contractor approves an enrollment application, it may allow retrospective billing for up to 30 days prior to the effective date established under 42 C.F.R. § 424.520 for a physician supplier who meets all program requirements and is providing Medicare-covered services.  42 C.F.R. § 424.521(a)(1).

NGS received an enrollment application from Petitioners on October 22, 2018.  CMS Ex. 19 at 1.  The October 2018 enrollment application was the only application among the four submitted by Petitioners in 2017 and 2018 that NGS processed to completion.  NGS approved the application with an effective date of October 22, 2018, and granted Petitioners 30 days of retrospective billing.  CMS Ex. 20 at 1.  Accordingly, as required by regulation, the effective date of Petitioners’ Medicare enrollment is October 22, 2018, with retrospective billing privileges effective September 22, 2018.

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Petitioners do not contend that they filed an enrollment application that was processed to completion earlier than October 22, 2018.  Rather, they argue that New York State authorities unreasonably delayed processing NeuroSpine’s authorization to do business in New York, which prevented Petitioners from filing an earlier acceptable application.  P. Br. at 4, 5.  In the following sections of this decision, I explain why Petitioners’ contentions are not a basis to change the effective date of Petitioners’ enrollment.

3. I have no authority to grant Petitioners an earlier effective date because NGS rejected Petitioners’ November 2017, March 2018, and August 2018 enrollment applications.

NGS rejected Petitioners’ November 2017, March 2018, and August 2018 Medicare enrollment applications.  The regulations define a rejected application as follows:

Reject/Rejected means that the provider or supplier’s enrollment application was not processed due to incomplete information, or that additional information or corrected information was not received from the provider or supplier in a timely manner.

42 C.F.R. § 424.502.  Petitioners do not dispute that the applications were rejected.  Because Petitioners’ applications were rejected, they cannot be the basis of Petitioners’ effective date of enrollment.  See, e.g., Lindsay Zamis, M.D., a Professional Corporation, DAB No. 2802 at 9 (2017) (effective date must be based on an application that was subsequently approved).

The regulations further provide:  “Enrollment applications that are rejected are not afforded appeal rights.”  42 C.F.R. § 424.525(d).  Thus, to the extent Petitioners may be arguing that I should set aside NGS’s rejection of their earlier applications, that argument is foreclosed by the regulation prohibiting administrative review of a contractor’s decision to reject a Medicare enrollment application.  Further, Petitioners may not challenge indirectly an action for which the regulations prohibit direct administrative review.  James Shepard, M.D., DAB No. 2793 at 8 (2017).

Moreover, even if I were authorized to review NGS’s rejection of Petitioners’ earlier applications, I would not find that NGS acted improperly.  As Petitioners acknowledge, NeuroSpine was not authorized to operate in New York State until August 3, 2018.  See P. Br. at 5; see also P. Ex. 9 at 8.  As such, NeuroSpine was ineligible to enroll in Medicare as a supplier before August 3, 2018.  NeuroSpine was not eligible for enrollment because it did not and could not provide NGS with the “[d]ocumentation associated with regulatory and statutory requirements necessary to establish a provider’s or supplier’s eligibility to furnish Medicare covered items or services to beneficiaries in

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the Medicare program” as required by 42 C.F.R. § 424.510(d)(2)(iii).5  Therefore, NGS could not have approved Petitioners’ earlier applications.

Petitioners appear to concede that NGS set their effective date of enrollment as prescribed in the regulations.  However, Petitioners argue that I should disregard the regulations because enforcing them would violate Dr. Jenkins’ constitutional rights and would be inequitable under the circumstances.  As I explain below, I am without authority to entertain these arguments.

4. An administrative law judge may not decline to apply a valid regulation, even on constitutional grounds.

Petitioners argue that, by failing to offer them an earlier effective date of enrollment, CMS (through its contractor, NGS) violates Dr. Jenkins’ right, under the Thirteenth Amendment of the Constitution, to be free from involuntary servitude.  P. Br. at 4.  I do not consider the merits of Petitioner’s constitutional argument.  Even if I were persuaded that Dr. Jenkins had been forced to care for Medicare beneficiaries without compensation – a finding I do not make – it would not alter the outcome in this case.  As an administrative law judge, I may not refuse to apply federal statutes or regulations.  Cornelius M. Donohue, DPM, DAB No. 2888 at 9 (2018); see also Zahid Imran, M.D., DAB No. 2680, at 9 (2016) (administrative law judge may not “[f]ind invalid or refuse to follow Federal statutes and regulations on constitutional grounds” (internal quotation marks omitted)).  Accordingly, Petitioners’ constitutional arguments are not a basis to change the effective date of their enrollment in Medicare, which was established pursuant to 42 C.F.R. § 424.520(d).  Nor do Petitioners’ other arguments lead to a different result.

5. Petitioners’ equitable arguments are not a basis to grant an earlier effective date of Medicare enrollment.

Petitioners argue that they were unable to file an acceptable Medicare enrollment application earlier than October 22, 2018, because of New York State’s “outrageous delay” in processing their request for authorization to do business in New York.  See P. Br. at 2.  Petitioners argue that they acted in good faith by fulfilling “not only an ethical duty but a legal duty” when Dr. Jenkins provided treatment to “all of the Medicare patients who followed him into private practice beginning January 1, 2018,” believing that his Medicare privileges would cover the gap period and allow for an effective date of January 1, 2018.  Id. at 4.  Petitioners contend that they will be deprived of compensation and CMS will obtain “unconscionable unjust enrichment” because they are unable to

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claim reimbursement for the services they provided to Medicare beneficiaries from January 1 through September 22, 2018.  Id.  In summary, Petitioners argue that “forfeitures are abhorrent under these circumstances.”  Id. at 3.

Concepts such as “unjust enrichment” and “forfeiture” sound in equity.  However, an administrative law judge is not authorized to provide equitable relief by reimbursing or enrolling a supplier that does not meet statutory or regulatory requirements.  US Ultrasound, DAB No. 2302 at 8 (2010) (citing Regency on the Lake, DAB No. 2205 (2008)).  Thus, while I may agree that Dr. Jenkins did not cause the delay in NeuroSpine’s approval to do business in New York, and thus was not responsible for Petitioners’ Medicare enrollment being delayed, these facts are irrelevant to the issues in this case as a matter of law.  I therefore find no basis to overturn NGS’s effective date determination.

V.  Conclusion

For the reasons explained above, I affirm NGS’s determination that the effective date for Petitioners’ enrollment in Medicare is October 22, 2018, with retrospective billing privileges effective September 22, 2018.

• 1. Both the initial and reconsidered determinations incorrectly identify September 22, 2018, as the effective date of enrollment.  CMS Ex. 20; CMS Ex. 23.  September 22, 2018, is the effective date of retroactive billing privileges as allowed under 42 C.F.R. § 424.521(a).  Pursuant to the regulations, the effective date of enrollment is the date the contractor receives an application that is subsequently processed to approval, which in this case is October 22, 2018.  42 C.F.R. § 424.520(d).
• 2. It appears that “Arthur L. Jenkins III MD LLC” is incorporated in Connecticut, rather than New York.  See CMS Ex. 10 at 17; see also P. Ex. 9 at 8.  This likely explains why there was no record of the corporation in New York.
• 3. The Pre-Hearing Order is dated March 25, 2019.  However, the docket entry (# 2) in DAB E-File reflects that the order was uploaded on March 22, 2019.
• 4. My findings of fact and conclusions of law appear as numbered headings in bold italic type.
• 5. Similarly, as far as the record reveals, “Arthur L. Jenkins III MD LLC” has never been authorized to practice as a professional corporation in New York.  See CMS Ex. 10 at 17; see also P. Ex. 9 at 8.  Thus, that corporation was also ineligible to enroll in Medicare as a supplier (in New York) during the period at issue.