Joyclyn Wicks, M.D., DAB CR5357 (2019)

DECISION

Novitas Solutions (Novitas), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), approved the request of Joyclyn Wicks, M.D, (Petitioner or Dr. Wicks) to reassign her right to receive Medicare payments with an effective date of February 14, 2017, with retrospective billing permitted as of January 15, 2017.  Petitioner requested a hearing before an administrative law judge because she seeks an earlier effective date.  Novitas approved Petitioner’s reassignment application that it received on February 14, 2017; accordingly, it correctly determined that the effective date for Petitioner’s reassigned payments is February 14, 2017.  Therefore, I affirm the effective date determination.

I. Background

Petitioner is an anesthesiologist employed by Allen Anesthesia Associates (Allen) who was enrolled in the Medicare program as a supplier.1  On February 14, 2017, Novitas

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received from Petitioner via the Medicare Provider, Enrollment Chain, and Ownership System (PECOS) a CMS-855R Medicare enrollment application to reassign to Allen her right to receive payment from Medicare.  See CMS Exhibit (Ex.) 2 at 1.  In a February 24, 2017 letter, Novitas approved Petitioner’s Medicare enrollment application.  CMS Ex. 3 at 1.  Novitas stated that it was assigning an effective date of January 15, 2017.2 Id. at 2.

In a reconsideration request dated March 23, 2017, Petitioner timely challenged the contractor’s effective date determination, and sought to have Novitas change the effective date of her reassignment to December 1, 2016.  CMS Ex. 4.  She stated that December 1, 2016 was the date she began treating patients at Allen.  Id.  Additionally, Petitioner claimed that another doctor in her practice, who submitted his reassignment application on February 14, 2017, as did Petitioner, was granted an effective date of December 1, 2016.  Id.  By letter dated June 1, 2017, Novitas issued a reconsidered determination upholding the effective date of February 14, 2017, with a retrospective billing date of January 15, 2017, pursuant to 42 C.F.R. §§ 424.520(d) and 424.521(a).  CMS Ex. 1 at 2.

By letter dated July 25, 2017, Petitioner requested a hearing before an administrative law judge.  The case was assigned to me and I issued an Acknowledgment and Pre-Hearing Order on August 24, 2017 (Pre-Hearing Order).  The Pre-Hearing Order directed each party to file a pre-hearing exchange consisting of a brief and any supporting documents and set forth the deadlines for those filings.  Pre-Hearing Order ¶ 4.  CMS filed a brief (CMS Br.), including a motion for summary judgment and five exhibits (CMS Exs. 1-5).  Petitioner did not object to any of CMS’s exhibits.  In the absence of objection, I admit CMS Exs. 1-5.

Petitioner did not submit her required pre-hearing exchange.  Therefore, on November 3, 2017, I issued an Order to Show Cause.  Petitioner, through her representative, responded on November 14, 2017.  Petitioner’s response indicated that she did not intend to file

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anything further, she did not dispute the facts put forth in CMS’s brief, and she wished to have the case decided on the written record as previously submitted.  Petitioner did not offer any proposed exhibits.

Neither party offered the written direct testimony of any witness as part of its pre-hearing exchange.  My August 24, 2017 Pre-Hearing Order indicated that “[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.  Pre-Hearing Order ¶¶ 4(c)(iv), 8, 9, 10; Civil Remedies Division Procedures § 19(d).

II. Issue

The issue in this case is whether Novitas, acting on behalf of CMS, properly established February 14, 2017, as the effective date for Petitioner’s reassignment of her right to receive Medicare payments.

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 Act § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

III. 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 a

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retrospective billing date that is 30 days prior to the effective date under 42 C.F.R. § 424.521.

The Act and regulations limit who may receive payments due to a supplier of services and also provide for reassignment of those rights.  Act § 1842(b)(6) (42 U.S.C. § 1395u(b)(6)); 42 C.F.R. § 424.70(a).  For Medicare Part B claims, a beneficiary may assign his or her benefits to an enrolled physician or non‑physician supplier providing services to that beneficiary.  Act § 1842(b)(3)(B)(ii) (42 C.F.R. § 1395u(b)(3)(B)(ii)).  In certain circumstances, a supplier who has received an assignment of benefits may reassign those benefits to an employer or to an individual or entity with which the supplier has a contractual arrangement.  Act § 1842(b)(3) (42 U.S.C. § 1395u(b)(3)); 42 C.F.R. § 424.80(b)(1)-(2).

For a supplier, such as a physician, to reassign benefits to an eligible entity,3 the supplier must complete and submit a Form CMS‑855R application.  Medicare Program Integrity Manual (MPIM), CMS Pub. 100‑08, Ch. 15, § 15.5.20.A.  The MPIM provides that reassignment of benefits may only occur between enrolled suppliers.  Id.  Further, the MPIM instructs contractors that when a Form CMS‑855R is submitted as a “stand alone” form (i.e., where an enrolled physician joins a new group practice), “the effective date of the enrollment and the reassignment shall be consistent with the 30‑day rule.”  MPIM § 15.5.20.E.3.4  Under the “30‑day rule,” CMS contractors calculate the effective date based on “the later of the date of filing or the date the reassignor first began furnishing services at the new location.”  Id.; see also 42 C.F.R. § 424.520(d).

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B. Findings of Fact and Conclusions of Law

1. On February 14, 2017, Novitas received Petitioner’s application to reassign her right to receive Medicare payments to Allen.

2. The effective date of reassignment of Petitioner’s right to receive Medicare payments is February 14, 2017, with a retrospective billing date of January 15, 2017.

Petitioner asks me to grant her an effective date of December 1, 2016, because that is the date that she began treating patients at Allen.  CMS Ex. 4 at 1.  However, the requested date is inconsistent with the regulations.  The regulations provide that 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).  The regulations further allow suppliers to “retrospectively bill” Medicare, meaning CMS permits a supplier to bill Medicare for up to thirty days before the effective date of enrollment if certain circumstances apply.  42 C.F.R § 424.521(a)(1).

Petitioner does not dispute that Novitas received her Medicare enrollment application on February 14, 2017, nor that Novitas processed that application to approval.  CMS Ex. 2 at 1; see also CMS Exs. 3,4. Even if December 1, 2016 is the date Dr. Wicks first began treating patients at Allen, February 14, 2017 (the date Novitas received the application) is the later date.  Accordingly, the effective date of Dr. Wicks’ reassignment of her right to receive Medicare payments is February 14, 2017.

3. Petitioner’s arguments in equity are not a basis to change the effective date of her reassignment.

Petitioner additionally argues that her effective date of reassignment should be December 1, 2016, because another doctor in her practice was given a December 1, 2016 effective date, although he also submitted his reassignment application on February 14, 2017.  The record before me does not establish the date on which Novitas received an application from Petitioner’s colleague.  Therefore, I am unable to determine the basis on which Novitas assigned an effective date of December 1, 2016.  Yet, even if Novitas assigned a different effective date to an application filed the same date as Petitioner’s, this fact is irrelevant to my decision.  The only issue before me is whether Novitas correctly assigned the effective date for Petitioner’s application.  For the reasons explained above, I have concluded that Novitas did so.

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In essence, Petitioner’s argument that her application should be treated the same as that of her colleague is based on principles of fairness and is therefore equitable in nature.  However, it is well-settled that neither administrative law judges nor appellate panels of the Departmental Appeals Board (Board) have authority to overturn a legally valid agency action on equitable grounds or otherwise grant equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010) (“[n]either the [administrative law judge] nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements”); see, e.g., Richard Weinberger, M.D. & Barbara Vizy, M.D., DAB No. 2823 at 18-19 (2017).

V. Conclusion

For the reasons explained above, I affirm that the effective date of Dr. Wicks’ reassignment to Allen of her right to receive Medicare payments is February 14, 2017, with a retrospective billing date of January 15, 2017.

• 1. Petitioner is considered a “supplier” for purposes of the Social Security Act (Act) and regulations. See Act § 1861(d), (u) (codified at 42 U.S.C. §§ 1395x(d), (u)); 42 C.F.R. § 498.2.
• 2. In its initial determination of February 24, 2017, Novitas identified January 15, 2017, as the “effective date” of Petitioner’s enrollment. CMS Ex. 3 at 2. However, by regulation, the “effective date” of enrollment is the date Novitas received an enrollment application from Petitioner that it eventually approved. See 42 C.F.R. § 424.520(d). Because January 15, 2017 is 30 days prior to the date Novitas received Petitioner’s application, it appears that Novitas incorrectly used the term “effective date” to refer to the date from which Petitioner was authorized to retrospectively bill for Medicare services. See 42 C.F.R. § 424.521(a)(1). Novitas confirmed this in its reconsidered determination. CMS Ex. 1 at 2. For clarity, I use the term “effective date” in this decision to refer to the effective date of reassignment that is established by regulation (February 14, 2017), not the date from which retrospective billing is authorized (January 15, 2017).
• 3. The MPIM, among other authorities, refers to a supplier’s reassignment of Medicare “benefits” to an employer or other entity. For clarity in this decision, when I refer to reassigned benefits, I am referring to the supplier’s right to receive Medicare payments, since suppliers are not Medicare beneficiaries.
• 4. CMS added section 15.5.20.E.3 to the MPIM by transmittal R676PI, which was effective December 19, 2016. See https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/2016-Transmittals-Items/R676PI.html. Thus, the MPIM’s direction to follow the “30-day rule” was applicable to the reassignment application Petitioner submitted in February 2017.