Back to Health, P.C., DAB CR5325 (2019)

DECISION

Noridian Healthcare Solutions (Noridian), a Medicare administrative contractor (MAC) for the Centers of Medicare & Medicaid Services (CMS), approved an initial enrollment application to enroll Back to Health, P.C. in Medicare as a supplier effective November 15, 2016.  Noridian reversed itself and ultimately rejected Petitioner’s application.  Petitioner then submitted a second initial enrollment application, which Noridian approved effective February 23, 2017.  For the reasons discussed below, I find that Noridian did not act in accordance with regulations when reopening the initial determination.  Regulations provide that Noridian must provide the affected party with notice when reopening an initial determination.  I therefore reverse Noridian’s reconsidered determination setting Petitioner’s enrollment effective date as February 23, 2017.

I. Background

Back to Health is a professional corporation in Oakes, North Dakota, solely owned by Nicole Cline, D.C.  Petitioner Exhibit (P. Ex.) 1.  On November 4, 2016, Noridian received a Form CMS-855I Medicare enrollment application from Petitioner (November application).  P. Ex. 1; P. Ex. 2.  The application included a completed Form CMS-460 participation agreement proposing a November 15, 2016 effective date for the

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participation agreement.  P. Ex. 1 at 16.1  By letter dated November 18, 2016, Noridian requested additional information from Petitioner.2  P. Ex. 4.  Petitioner submitted information to Noridian in response to the inquiry.  P. Ex. 5.  By letter dated January 4, 2017, Noridian notified Petitioner that its initial Medicare enrollment application was approved, with an effective date of November 15, 2016.  P. Ex. 6.

Despite having informed Petitioner that its enrollment application had been approved, Noridian sent Petitioner an email on January 6, 2017, requesting additional information to complete processing the application.  P. Ex. 8.  The subject line of the email reads:  “Medicare Enrollment RFI [request for information] – CLINE – 921487465.”  Id.  The reference number in the email, 921487465, matches the reference number on Noridian’s letters acknowledging receipt of Petitioner’s November application, requesting additional information, and approving the November application.  P. Ex. 2; P. Ex. 4; P. Ex. 6; P. Ex. 8.  Then, by letter dated February 15, 2017, Noridian notified Petitioner that it had rejected Petitioner’s November 2016 application because Petitioner failed to respond to the January 6, 2017 request for additional information.  P. Ex. 11.

After receiving the February 15 rejection letter, Petitioner submitted another Form CMS‑855I, which Noridian received on February 23, 2017 (February application).  CMS Ex. 1; CMS Ex. 9 at 2.  Noridian requested additional information on March 7 and March 9, 2017, and Petitioner responded to both requests in a timely manner.  CMS Ex. 2; CMS Ex. 3; CMS Ex. 4; CMS Ex. 5; CMS Ex. 6.  By email on March 20, 2017, Noridian approved Petitioner’s February application, effective February 23, 2017, with

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retroactive billing privileges effective January 24, 2017.3  CMS Ex. 7.  Petitioner requested reconsideration.  CMS Ex. 8.  In response, Noridian issued a reconsidered determination upholding the February 23, 2017 effective date.  CMS Ex. 9.

Petitioner requested a hearing before an administrative law judge, and the case was assigned to me.  I issued an Acknowledgment and Pre-Hearing Order, dated July 24, 2017 (Pre-Hearing Order), which 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 for summary judgment, and 11 proposed exhibits (CMS Exs. 1-11).  Petitioner filed a brief (P. Br.), did not object to the exhibits offered by CMS, and offered 22 exhibits (P. Ex. 1-22).  Petitioner Exhibits 13‑16, 19, and 21 are similar, but not identical to, CMS Exhibits 1-4, 10, and 8, respectively, therefore, in the interest of completeness, I do not exclude them as duplicative.  In the absence of objection, I admit CMS Exs. 1-11 and P. Ex. 1-22.  Neither party offered the written direct testimony of any witness as part of its pre-hearing exchange.  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.  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 determined Petitioner’s effective date of enrollment.

III. Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2); see also Social Security Act (Act) § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

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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 under the requirements stated in 42 C.F.R. § 424.520(d) and may permit retrospective billing as provided in 42 C.F.R. § 424.521.

An initial determination made by CMS is binding unless it is reconsidered, reversed or modified by a hearing decision, or revised in accordance with 42 C.F.R. § 498.32.  42 C.F.R. § 498.20(b).  With an exception not relevant here, CMS may reopen and revise any initial determination within 12 months after the date of notice of the initial determination.  42 C.F.R. § 498.30.  If CMS elects to reopen and revise an initial determination, it must give notice to the affected party of the reopening and revision.  42 C.F.R. § 498.32(a).  This notice must state the basis or reason for the revised determination.  Id.

B. Findings of Fact, Conclusions of Law, and Analysis4

1. On November 4, 2016, Noridian received Petitioner’s initial Medicare enrollment application.

2. Noridian approved this application on January 4, 2017, assigning an effective date of November 15, 2016.

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3. Assigning an effective date of enrollment is an initial determination.

4. Noridian did not reopen its initial determination in accordance with applicable regulations.

5. Noridian’s initial determination is binding.

Noridian received Petitioner’s initial enrollment application on November 4, 2016.  P. Ex. 2; see CMS Br. at 5 (acknowledging that Petitioner submitted an enrollment application in November 2016).  By letter dated January 4, 2017, Noridian notified Petitioner that its November enrollment application was approved.  P. Ex. 6.  On January 6, 2017, two days after Noridian approved the November application, Noridian requested additional information from Petitioner to “complete processing [the] application.”  P. Ex. 8.  The reference number on the email indicates that the January 6, 2017 request for additional information relates to the approved application.  P. Ex. 2; P. Ex. 4; P. Ex. 6; P. Ex. 8.  Thereafter, in a letter of February 15, 2017, Noridian stated that it was rejecting the application it had previously approved.  P. Ex. 11.  Later, Noridian assigned a new effective date of enrollment and Petitioner requested reconsideration.  CMS Exs. 7, 8.  Noridian issued a reconsidered determination concluding that its assignment of a new effective date was proper.  CMS Ex. 9.  This appeal followed.

Because Noridian issued a reconsidered determination and Petitioner appealed, I have jurisdiction to review the appropriate effective date of Petitioner’s Medicare enrollment.  See Andrew J. Elliott, M.D., DAB No. 2334 at 7 n.7 (2010) (“the regulations do not bar an [administrative law judge], on a properly filed appeal of an effective date of enrollment determination, from considering an earlier enrollment application in that process in order to determine the correct effective date”).  My review of Petitioner’s November application leads me to conclude that Noridian’s assignment of a February 23, 2017 effective date is incorrect.

Noridian’s January 4, 2017 letter represents an initial determination because it includes an effective date of supplier approval.  42 C.F.R. § 498.3(b)(15).  While Noridian may reopen an initial determination, it must do so in accordance with the regulations.  Neither Noridian’s January 6, 2017 email nor its February 15, 2017 letter conforms to the regulation on reopening.  As noted above, a reopening must provide notice and state the basis for reopening.  To comply with the regulation, Noridian was required to state, at a minimum, that it was reopening its initial determination.  Noridian failed to do this.  Nowhere in either its email of January 6, 2017 or its letter of February 15, 2017, does Noridian state that it is reopening the initial determination approving Petitioner’s November application, or explain a basis for doing so.  Further, there is no evidence that Noridian sent Petitioner any other communication giving notice of reopening.  As an

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appellate panel of the DAB observed, “Under 42 C.F.R. §§ 498.30 and 498.32, CMS may reopen and revise an initial determination . . . within one year of the initial notice and must state the basis or reason for its action in [a] revised determination notice.  Community Northview Care Ctr., DAB No. 2295 at 18 n.15 (2009) (emphasis added).  Consistent with this reasoning, the reopening was improper and Noridian’s initial determination is binding.  42 C.F.R. § 498.20(b).

6. The effective date of Petitioner’s Medicare enrollment is November 15, 2016.

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 Petitioner’s initial Medicare enrollment application on November 4, 2016.  P. Ex. 2; see CMS Br. at 5.  Noridian processed this application and approved it on January 4, 2017, with an effective date of November 15, 2016, as requested in the participation agreement.5  P. Ex. 6.  Noridian did not reopen and revise this initial determination in accordance with the regulations.  Accordingly, Petitioner’s effective date of enrollment is November 15, 2016.

V. Conclusion

For the reasons explained above, I reverse CMS’s determination that the effective date of Petitioner’s initial enrollment is February 23, 2017.  Noridian’s initial determination that Petitioner’s effective date of Medicare enrollment is November 15, 2016, is binding.

• 1. Petitioner did not number each page of its exhibits as required by my Pre-Hearing Order ¶ 5.  I refer to the PDF pages as they appear in the document in the Departmental Appeals Board (DAB) Electronic Filing system (E-File).
• 2. Noridian addressed its correspondence regarding this application solely to Dr. Cline without reference to Back to Health.  The correspondence references Dr. Cline’s National Provider Identification (NPI) and Provider Transaction Number (PTAN).  Dr. Cline submitted the November application to enroll Back to Health.  P. Ex. 1.  Noridian did not make a clear distinction between Dr. Cline and Back to Health, which undoubtedly caused confusion for both Petitioner and Noridian’s own staff.  It is incumbent upon CMS contractors to be precise when identifying the supplier whose application they are reviewing.  When I refer to Petitioner in this decision, I intend to include both Dr. Cline and Back to Health, as Dr. Cline is Back to Health’s sole owner.
• 3. Both the approval letter and the reconsidered determination incorrectly list January 24, 2017, as the effective date of enrollment.  CMS Ex. 7; CMS Ex. 9.  January 24, 2017, 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 is the date an application that is subsequently processed to approval is received, which in this case is February 23, 2017.  42 C.F.R. § 424.520(d).
• 4. My findings of fact and conclusions of law appear as numbered headings in bold italic type.
• 5. While the record is not entirely clear on this point, it appears that November 15, 2016 may be the date on which Dr. Cline first began seeing patients at Petitioner’s location.  It is not necessary for me to make a finding on this issue, however, because Noridian’s initial determination that Petitioner’s effective date of enrollment is November 15, 2016, is administratively final.