Alan Berk, M.D., DAB CR5305 (2019 )

DECISION

The effective date for the reassignment of Medicare benefits from Alan Berk, M.D. (Petitioner) to Allen Anesthesiology Associates is February 14, 2017, with a retrospective effective date of January 15, 2017.

I. Background and Procedural History

Petitioner is a physician who had been enrolled in the Medicare program before 2017. Petitioner electronically filed a CMS-855R form, through the Provider Enrollment, Chain, and Ownership System (PECOS), seeking reassignment of Medicare benefits from Petitioner to a practice called Allen Anesthesiology Associates. A Centers for Medicare & Medicaid Services (CMS) contractor received the reassignment application on February 14, 2017. CMS Exhibit (Ex.) Ex. 4.

In a February 22, 2017 initial determination, the CMS contactor approved Petitioner's reassignment of Medicare benefits request and informed Petitioner that the effective date for reassignment was January 15, 2017. CMS Ex. 2 at 1-2.  Petitioner sought reconsideration, asserting that the effective date should be December 1, 2016, because

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that is the date on which Petitioner started treating patients with Allen Anesthesia Associates. CMS Ex. 1 at 2. In a June 22, 2017 reconsidered determination, the CMS contractor applied 42 C.F.R. § 424.520(d) to conclude that the correct effective date was February 14, 2017, and applied 42 C.F.R. § 424.521(a) to establish a retrospective effective date of January 15, 2017. CMS Ex. 1 at 2.

Petitioner requested a hearing before an administrative law judge to dispute the reconsidered determination. The case was originally assigned to Judge Keith W. Sickendick. On September 7, 2017, Judge Sickendick issued an Acknowledgment and Prehearing Order (Order), which established a submission schedule for prehearing exchanges. In response, CMS filed a brief and seven exhibits; however, Judge Sickendick rejected that filing because it did not conform to the requirements of the Order. CMS refiled five exhibits (CMS Exs. 1-5) and an updated prehearing brief. One of the exhibits was the declaration of Robin Fry, an employee with the CMS contractor. CMS Ex. 5. Petitioner did not file a submission, and Judge Sickendick issued an Order to Show Cause. Petitioner responded that CMS filed all of the relevant documents in the case and requested that Judge Sickendick issue a decision based on the exhibits that were submitted. CMS then made a similar request.

On November 20, 2018, the case was transferred to me.

II. Decision on the Written Record

I render this decision based on the written record because both Petitioner and CMS requested me to do so. 42 C.F.R. § 498.66(a), (b).

Petitioner did not object to CMS's proposed exhibits; therefore, I admit CMS Exs. 1-5 into the record. 42 C.F.R. § 498.66(d)(1).

III. Issue

Whether CMS had a legitimate basis to establish February 14, 2017, as the effective date for the reassignment of Medicare benefits from Petitioner to Allen Anesthesia Associates.

IV.  Jurisdiction

I have jurisdiction to hear and decide this case. See 42 C.F.R. § 498.3(b)(15).

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

My findings of fact and conclusions of law are set forth in italics and bold font.

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The Social Security Act (Act) authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations governing the enrollment process for providers and suppliers. 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. 42 U.S.C. § 1395x(d); see also 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 terms "Enroll/Enrollment means the process that Medicare uses to establish eligibility to submit claims for Medicare‑covered items and services." 42 C.F.R. § 424.502. A supplier seeking billing privileges under the Medicare program must "submit enrollment information on the applicable enrollment application. Once the . . . supplier successfully completes the enrollment process ... CMS enrolls the ... 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 30-day retrospective billing period under 42 C.F.R. § 424.521(a)(1).

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. 42 U.S.C. § 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. 42 U.S.C. § 1395u(b)(6); 42 C.F.R. § 424.80(b)(1)-(2). CMS applies the effective date rules at 42 C.F.R. §§ 424.520(d) and 424.521(a)(1) to reassignments of Medicare benefits. See Medicare Program Integrity Manual (MPIM) §§ 15.5.20(E)(3), 15.17.

1. On February 14, 2017, the CMS administrative contractor received Petitioner's application to reassign Medicare benefits (CMS-855R), which the CMS administrative contractor approved.

Petitioner submitted a CMS‑855R reassignment of Medicare benefits application, which a CMS contractor received on February 14, 2017. CMS Exs. 4, 5. The CMS contractor ultimately approved this application. CMS Ex. 2.

2. Petitioner's reassignment of Medicare benefits to Allen Anesthesia Associates is effective February 14, 2017, with a retrospective reassignment period effective January 15, 2017.

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

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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). Further, under the regulations, CMS may permit a 30‑day retrospective period of billing. 42 C.F.R. § 424.521(a)(1). CMS's published guidance for its contractors apply these effective date rules to reassignments of Medicare benefits. See MPIM §§ 15.5.20(E)(3), 15.17.

In the present case, the reassignment application that the CMS contractor was able to process to completion was the one received on February 14, 2017. The June 22, 2017 reconsidered determination applied 42 C.F.R. § 424.520(d) to conclude that the correct effective date was February 14, 2017, and applied 42 C.F.R. § 424.521(a) to establish a retrospective effective date of January 15, 2017. CMS Ex. 1 at 2. The reconsidered determination correctly applied 42 C.F.R. §§ 424.520(d) and 424.521(a)(1) based on CMS policy.

In his hearing request, Petitioner stated that another physician who started with Allen Anesthesia Associates on the same day as Petitioner and filed his reassignment application on the same day as Petitioner, received the reassignment effective date of December 1, 2016. Request for Hearing; Request for Hearing, Supporting Document. Although Petitioner is correct that the CMS contractor provided a different physician with a December 1, 2016 reassignment effective date, the CMS contractor later modified that reassignment effective date to January 15, 2017.  CMS Exs. 3, 5 at 2.

VI. Conclusion

I affirm the CMS contractor's reconsidered determination and conclude that Petitioner's effective date for reassignment of Medicare benefits to Allen Anesthesia Associates is February 14, 2017, with a retrospective reassignment period effective date of January 15, 2017.