Andrea Sylvester, NP, DAB CR5248 (2019)

DECISION

Petitioner, Andrea Sylvester, NP, reassigned her right to file claims with and receive payment from Medicare to Age Management of West Michigan (Age Management) effective August 31, 2017, with retrospective billing pursuant to the reassignment permitted beginning August 1, 2017.

I.  Procedural History

Wisconsin Physicians Service Insurance Corporation (WPS), a Medicare administrative contractor (MAC), notified Petitioner by letter dated October 9, 2017, that Petitioner’s Medicare application to reassign her right to file claims with and receive payment from Medicare to Age Management was approved with retrospective billing privileges effective August 1, 2017.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 27-29.  Petitioner requested a reconsidered determination by letter dated October 20, 2017.  CMS Ex. 1 at 32-33.

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On November 16, 2017, the MAC notified Petitioner that the reconsidered determination upheld an effective date of reassignment of August 31, 2017, with retrospective billing beginning August 1, 2017.1   CMS Ex. 1 at 1-4.

Petitioner requested a hearing before an administrative law judge (ALJ) by letter postmarked December 8, 2017 (RFH).  The case was assigned to me and an Acknowledgment and Prehearing Order was issued at my direction.

CMS filed a motion for summary judgment with CMS Exs. 1 through 3 on February 17, 2018.  On March 16, 2018, Petitioner filed a document that purports to be the combined affidavit of Sandra Mitteer and Kyle Jean, which is not marked as an exhibit but which I treat as if marked Petitioner’s Exhibit 1 (P. Ex. 1).  On March 20, 2018, Petitioner submitted two, one-page letters that I treat as Petitioner’s brief (P. Br.).  CMS filed a reply brief (CMS Reply) on March 30, 2018.  The parties have not objected to my consideration of CMS Exs. 1 through 3 or P. Ex. 1 and they are admitted.

II. Discussion

A.  Applicable Law

Section 1831 of the Social Security Act (the Act) (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B.  Payment under the program for services rendered to Medicare-eligible

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beneficiaries may only be made to eligible providers of services and suppliers.2   Act §§ 1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395(u)(h)(1)).  Administration of the Part B program is through the MACs.  Act § 1842(a) (42 U.S.C. § 1395u(a)).

The Act requires the Secretary of Health and Human Services (the Secretary) to issue regulations that establish a process for the enrollment of providers and suppliers, including the right to a hearing and judicial review of certain enrollment determinations.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).  Pursuant to 42 C.F.R. § 424.505,3 a provider or supplier must be enrolled in the Medicare program and be issued a billing number to have billing privileges and to be eligible to receive payment for services rendered to a Medicare-eligible beneficiary.

The Medicare beneficiary, one who is entitled to benefits under Medicare Part A or enrolled under Part B, is the individual covered by Medicare and entitled to request payment for Medicare-covered health care items and services.  Act § 1802.  The assignment of the right to file a claim for Medicare coverage of health care charges from a Medicare beneficiary to a Medicare-enrolled provider or supplier is limited.  The reassignment of the right to file a Medicare claim from an enrolled provider or supplier to another is very limited.  42 C.F.R. pt. 424, subpt. F.  Reassignment to an employer is

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permitted from a supplier, such as a physician, when reassignment is required as a condition of employment. 42 C.F.R. § 424.80(b)(1).

The Secretary has issued regulations that establish the right to a hearing and judicial review of certain enrollment determinations.  Act § 1866(j) (42 U.S.C. § 1395cc(j)). Pursuant to sections 1866(h)(1) and (j)(8), a provider or supplier whose enrollment application or renewal application is denied is entitled to an administrative hearing and judicial review.  Appeal and review rights in provider and supplier cases are specified by 42 C.F.R. §§ 424.545 and 498.5.

B.  Issues

Whether I have jurisdiction to review the determination by CMS or a MAC of the effective date of reassignment of the right to file claims with and to receive payment from Medicare;

Whether summary judgment is appropriate; and

The effective date of reassignment.

C.  Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold text followed by my findings of undisputed fact and analysis.

1.  There is authority to conduct review in this case.

Petitioner seeks review of the MAC’s reconsidered determination of the effective date of Petitioner’s right to file claims with and obtain payment from Medicare for care and services delivered to Medicare-eligible beneficiaries.

The Secretary promulgated the regulations at 42 C.F.R. §§ 424.545 and 498.5 that specify review and appeal rights in provider and supplier cases.  The Secretary has not specifically stated that a supplier has a right to ALJ review of a CMS or MAC determination related to reassignment of the right to file claims with and receive payment from Medicare, including the effective date of reassignment.  42 C.F.R. §§ 424.70-.90, 424.545, 498.3(b), 498.5.  However, 42 C.F.R. § 498.3(b)(15), provides that “[t]he effective date of a Medicare provider agreement or supplier approval” is an initial determination subject to review by an ALJ.  The Board has given an expansive interpretation to 42 C.F.R. § 498.3(b)(15) and found a right to ALJ review of the effective date of enrollment in Medicare as well as the effective date of the reactivation of billing privileges.  See, e.g., Victor Alvarez, M.D., DAB No. 2325 at 3-12 (2010) (determination of effective date of enrollment in Medicare is an initial determination

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subject to ALJ review and Board appeal); Urology Group of NJ, LLC, DAB No. 2860 at 6 (2018) (no right to review of a CMS or MAC determination to deactivate billing privileges but right to review of the determination of the effective date of reactivation).  Applying the reasoning of the Board in Alvarez and Urology Group, I conclude that a supplier has the right to ALJ review of the CMS or MAC determination of the effective date of reassignment.  However, the only determination of CMS or the MAC that is subject to my review in a provider and supplier case is the reconsidered determination.  See 42 C.F.R. § 498.5(l)(1)-(2); Neb Group of Ariz. LLC, DAB No. 2573 at 9.

2.  Summary judgment is appropriate.

I have concluded, based on the rationale of the Board in prior cases, that Petitioner has a right to ALJ review of the determination of the effective date of reassignment of his right to file claims with and receive payment from Medicare.  A hearing on the record before an ALJ is required under the Act.  Act §§ 205(b), 1866(h)(1), (j); Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (2004).  The procedures governing hearings in provider and supplier enrollment cases are at 42 C.F.R. pt. 498.  A party may waive appearance at an oral hearing but must do so affirmatively in writing.  42 C.F.R. § 498.66.  Petitioner has not waived oral hearing.

CMS filed a motion for summary judgment.  Summary judgment is not automatic but is limited to certain specific conditions.  The regulations do not establish or recognize a summary judgment procedure.  However, the Board has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498.  See, e.g., Crestview Parke, 373 F.3d at 748-51; Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997).  The Board has also recognized that the Federal Rules of Civil Procedure do not apply in administrative adjudications such as this, but the Board has accepted that Fed. R. Civ. P. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate.  Furthermore, a summary judgment procedure was adopted as a matter of judicial economy within my authority to regulate the course of proceedings and made available to the parties in the litigation of this case by my Prehearing Order.  The parties were given notice by the Prehearing Order that summary judgment is an available procedural device and that the law as it has developed related to Fed. R. Civ. P. 56 will be applied.  Prehearing Order ¶¶ III.D. & G.

Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law.  In determining whether there are genuine issues of material fact for trial, the reviewer must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor.  The party requesting summary judgment bears the burden of showing that there are no genuine issues of material fact for

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trial and/or that it is entitled to judgment as a matter of law.  Generally, the non-movant may not defeat an adequately supported summary judgment motion by relying upon the denials in its pleadings or briefs but must furnish evidence of a dispute concerning a material fact, i.e., a fact that would affect the outcome of the case if proven.  See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 5 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 5 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein).

The standard for deciding a case on summary judgment and an ALJ’s decision-making in deciding a summary judgment motion differs from that used in resolving a case after a hearing.  On summary judgment, the ALJ does not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence, as would be done when finding facts after a hearing on the record.  Rather, on summary judgment, the ALJ construes the evidence in a light most favorable to the non-movant and avoids deciding which version of the facts is more likely true.  Holy Cross Vill. at Notre Dame, Inc., DAB No. 2291 at 5 (2009).  The Board also has recognized that on summary judgment it is appropriate for the ALJ to consider whether a rational trier of fact could find that the party’s evidence would be sufficient to meet that party’s evidentiary burden.  Dumas Nursing & Rehab., L.P., DAB No. 2347 at 5 (2010).  The Secretary has not provided in 42 C.F.R. pt. 498 for the allocation of the burden of persuasion or the quantum of evidence required to satisfy the burden.  However, the Board has provided some persuasive analysis regarding the allocation of the burden of persuasion in cases subject to 42 C.F.R. pt. 498.  Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005).

In this case, I conclude that Petitioner has failed to show that there is a genuine dispute as to any material fact as discussed hereafter pertinent to determination of the correct effective date of Petitioner’s reassignment of her right to file claims with and receive payment from Medicare.  The facts are undisputed and CMS is entitled to judgment as a matter of law.  Accordingly, I conclude that summary judgment is appropriate.

3.  The effective date of Petitioner’s reassignment of her right to file claims with and receive payment from Medicare, which is determined pursuant to 42 C.F.R. § 424.520(d), is August 31, 2017.

4.  The beginning of the period of retrospective billing privileges on the reassigned claims, which is determined pursuant to 42 C.F.R. § 424.520(d), is August 1, 2017.

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a.  Undisputed Facts

The parties were advised in the Prehearing Order ¶ III.G that, for purposes of ruling on a motion for summary judgment, a fact alleged and not specifically denied will be accepted as true and offered evidence will be considered admissible and true absent a specific objection.  The following findings of fact are based upon the undisputed or conceded facts.  I do not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence on summary judgment.  The evidence is viewed in the light most favorable to Petitioner, the nonmovant, with all inferences drawn in Petitioner’s favor.

Petitioner was enrolled in Medicare prior to June 28, 2017.  CMS Br. at 8.  On June 28, 2017, the MAC received a CMS-855R to reassign Petitioner’s right to file claims with and receive payment from Medicare to Age Management.  P. Ex. 1; CMS Ex. 1 at 5-8 (Julian date lower left corner), 10.  CMS has presented evidence that on July 6, 2017, the MAC informed Petitioner by letter that it could reject Petitioner’s CMS-855R if Petitioner did not make requested corrections or supply requested information.  CMS Ex. 1 at 9.  CMS has placed in evidence a letter from the MAC to Petitioner dated August 7, 2017, informing Petitioner that her CMS-855R received June 28, 2017, was rejected because Petitioner failed to submit a corrected certification statement.  CMS Ex. 1 at 10-11.  Petitioner denies receiving correspondence from the MAC for additional or corrected information or that her CMS-855R was rejected.  P. Ex. 1 at 1; CMS Ex. 1 at 32; RFH.

Petitioner submitted a new CMS-855R that was received by the MAC on August 31, 2017.  P. Ex. 1 at 1; CMS Ex. 1 at 12-16 (Julian date lower left corner).  The MAC advised Petitioner by letters dated September 8 and 25, 2017, that the CMS-855R required correction.  CMS Ex. 1 at 17, 19, 26.  The MAC notified Petitioner by letter dated October 9, 2017, that her “initial Medicare enrollment application” was approved; however, there is no dispute that it was her reassignment application that was approved.4  CMS Ex. 1 at 27-29.

b.  Analysis

There are two actions of the MAC that concern Petitioner.  The MAC rejected Petitioner’s first reassignment application.  Subsequently, the MAC processed

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Petitioner’s second reassignment application, but Petitioner wanted an earlier effective date of reassignment and/or an earlier date for retrospective billing under the reassignment.  Petitioner argues that the effective date of her reassignment should be based on the MAC’s receipt of the rejected CMS-855R on June 28, 2017, with retrospective billing privileges authorized beginning May 28 or 29, 2017.  RFH; P. Br.

Petitioner has no right to review of the rejection of the first reassignment application and I have no authority to conduct any review of that action.  Under 42 C.F.R. pt. 424, subpt. P, the terms reject and rejected mean that an enrollment application was not processed due to incomplete information or that additional or corrected information was not timely received from the provider or supplier who filed that application.  42 C.F.R. § 424.502.  Pursuant to 42 C.F.R. § 424.525(a)(1), CMS or the MAC may reject an enrollment application if a provider or supplier fails to furnish all requested information within 30 calendar days.  CMS or the MAC has discretion to extend the 30-day period pursuant to 42 C.F.R. § 424.525.  However, there is no right to review of the rejection of an application.  42 C.F.R. § 424.525(d).  When an application is rejected, the provider or supplier must file a complete new application with all supporting documents.  42 C.F.R. § 424.525(c).  The fact that Petitioner never received notice that correction or supplementation was required of the rejected CMS-855R, a fact I accept as true for purposes of summary judgment, is simply not relevant because I cannot review the rejection.  Similarly, the fact the MAC and CMS exercised discretion and did not extend the deadline to correct or supplement the rejected CMS-855R is not relevant, as I have no authority to review that exercise of discretion either.  Accordingly, I conclude that I may not review the MAC’s rejection of Petitioner’s initial reassignment application received by the MAC on June 28, 2017 and rejected on August 7, 2017.

Based on my analysis of Board interpretive rules in various decisions, I conclude Petitioner does have a right to my review of the reconsidered determination of the effective date of Petitioner’s reassignment of her right to file claims with and receive payment from Medicare.  The Secretary’s regulations do not specify how to determine an effective date for an authorized reassignment.  42 C.F.R. pt. 424, subpt. F.  However, CMS has addressed the determination of the effective date of a reassignment by policy or interpretive rules in effect at the time of the reconsidered determination found in the Medicare Program Integrity Manual (MPIM), CMS Pub. 100-08, ch. 15, § 15.5.20 (rev. 717, eff. May 15, 2017).  MPIM § 15.5.20A requires that a CMS-855R be completed and filed by an individual that wants to reassign benefits to an eligible entity or to terminate a reassignment.  Both the party seeking to reassign (reassignor) and the party to whom reassignment is intended (reassignee) must be enrolled in Medicare.  A party seeking to reassign that is not enrolled may submit a CMS-855I concurrently with the CMS-855R to accomplish enrollment and reassignment.  If the party receiving the reassignment is not enrolled, that party must file the appropriate version of form CMS-855.  MPIM § 15.5.20A.  The MPIM § 15.5.20E.3 provides:

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If the Form CMS-855R is accompanied by an initial Form CMS-855I or submitted as a “stand-alone” form (that is, a Form CMS-855R is submitted as a new reassignment, such as when an enrolled physician who is operating as a sole proprietor joins a group practice and reassigns his benefits to the group), the effective date of enrollment and the reassignment shall be consistent with the 30-day rule (i.e., the later of the date of filing or the date the reassignor first began furnishing services at the new location) specified in section 15.17 of this chapter.

MPIM § 15.5.20E.3.  MPIM § 15.17 incorporates the provisions of 42 C.F.R. §§ 424.520(d) and 424.521(a), the regulations that govern determination of the effective date of enrollment and authorized period of retrospective billing for physicians, non-physician practitioners, physician and non-physician practitioner organizations, and ambulance suppliers.

The effective date of enrollment in Medicare of a physician, nonphysician practitioner, and physician and nonphysician practitioner organizations is governed by 42 C.F.R. § 424.520(d).  The effective date of enrollment for a physician or nonphysician practitioner may only be the later of two dates:  the date when the physician or nonphysician practitioner filed an application for enrollment that was subsequently approved by a Medicare contractor charged with reviewing the application on behalf of CMS; or the date when the physician or nonphysician practitioner first began providing services at a new practice location.  42 C.F.R. § 424.520(d).  An application is “filed” when it is received by the MAC.  Alexander C. Gatzimos, MD, JD, LLC , DAB No. 2730 (2016).

An enrolled physician or nonphysician practitioner may retrospectively bill Medicare for services provided to Medicare-eligible beneficiaries up to 30 days prior to the effective date of enrollment, if circumstances precluded enrollment before the services were provided.  Retrospective billing for up to 90 days prior to the effective date of enrollment is permitted only in case of a Presidentially-declared disaster pursuant to 42 U.S.C. §§ 5121-5206.  42 C.F.R. § 424.521(a).

Applying the regulations in this case is straightforward.  There is no dispute Petitioner started working for Age Management on about May 25, 2017.  CMS 1 at 7, 14, 23.  There is also no dispute that on August 31, 2017, Petitioner filed (that is, the date it was received by the MAC) her CMS-855R reassignment application that was processed to completion by the MAC.  The later of the two dates is August 31, 2017.  Accordingly, the effective date of reassignment may only be August 31, 2017.  Pursuant to 42 C.F.R. § 424.521(a), retrospective billing is permissible for only 30 days, in this case, beginning

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on August 1, 2017.  Retrospective billing for 90 days is not permitted except in the case of a Presidentially-declared disaster, which did not occur in this case.

III.  Conclusion

For the foregoing reasons, I conclude that Petitioner reassigned her right to file claims with and receive payment from Medicare to Age Management effective August 31, 2017, with retrospective billing pursuant to the reassignment permitted beginning August 1, 2017.

• 1.The reconsidered determination is not a model of clarity.  The reconsidered determination states the application was received by WPS on August 31, 2017, and that the effective date of August 1, 2017 was properly determined.  As discussed hereafter, the effective date of enrollment, reactivation, or reassignment is generally the date of receipt of the enrollment application ultimately approved by the MAC, that is, August 31, 2017 in this case, and the period for retrospective billing begins 30 days prior to receipt, that is, August 1, 2017.  CMS agrees.  CMS Br. at 3 n.1, 14.  The reconsidered determination also does not clearly state that what is at issue is an application for reassignment (CMS-855R) rather than an application for initial enrollment (CMS-855I).  CMS and the MACs are encouraged to avoid possible remands by ensuring that the correct form letters are used or modified to more clearly reflect the legal and factual issues considered on reconsideration, particularly because my jurisdiction is limited to reviewing the reconsidered determination.  Neb Group of Ariz. LLC, DAB No. 2573 at 9 (2014).
• 2.Petitioner is a “supplier” under the Act and the regulations.  A “supplier” furnishes services under Medicare and the term supplier applies to physicians or other practitioners and facilities that are not included within the definition of the phrase “provider of services.”  Act § 1861(d) (42 U.S.C. § 1395x(d)).  A “provider of services,” commonly shortened to “provider,” includes hospitals, critical access hospitals, skilled nursing facilities, comprehensive outpatient rehabilitation facilities, home health agencies, hospice programs, and a fund as described in sections 1814(g) and 1835(e) of the Act.  Act § 1861(u) (42 U.S.C. § 1395x(u)).  The distinction between providers and suppliers is important because they are treated differently under the Act for some purposes.
• 3.Citations are to the 2016 revision of the Code of Federal Regulations (C.F.R.) which was in effect at the time of the initial determination, unless otherwise indicated.  An appellate panel of the Departmental Appeals Board (Board) concluded in Mark A. Kabat, D.O., DAB No. 2875 at 9-11 (2018) that the applicable regulations are those in effect at the time of the initial determination.  However, the Board previously concluded that the only determination subject to my review in a provider and supplier enrollment case such as this is the reconsidered determination.  Neb Group of Ariz. LLC, DAB No. 2573 at 9.  In this case, the regulations did not change between the issuance of the initial and reconsidered determinations.
• 4.Petitioner indicates in the request for reconsideration that a CMS-855I (initial enrollment application) was submitted with the CMS-855R, but there appears to be no dispute that Petitioner was previously enrolled in Medicare and that the purpose for submission of both applications was to accomplish reassignment and not an initial enrollment in Medicare.  CMS Br. at 8.