CheunJu Chen, M.D., DAB CR5465 (2019)

DECISION

Petitioner, CheunJu Chen, M.D., is a Maryland physician who specializes in neurology and participates in the Medicare program. She applied to reassign her Medicare billing privileges to Parkway Neuroscience & Spine Institute, a group practice with which she had previously been associated. The Medicare contractor granted her application with an effective date of December 21, 2016. Petitioner now challenges that effective date.

The Centers for Medicare & Medicaid Services (CMS) moves to dismiss Petitioner's request for review. For the reasons discussed below, I deny CMS's motion.

Because Petitioner filed her subsequently-approved enrollment application on November 8, 2016, I find that November 8 is the correct effective date for her enrollment.

Background

In a letter dated January 4, 2017, the Medicare contractor, Novitas Solutions, advised Petitioner Chen that it approved her application to reassign her Medicare payments to Parkway, effective December 21, 2016. CMS Ex. 6; P. Ex. 5. Petitioner sought reconsideration to challenge that effective date. CMS Ex. 7 at 16-17; P. Ex. 7. In a

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reconsidered determination, dated March 16, 2017, the contractor denied Petitioner an earlier effective date. CMS Ex. 9; P. Ex. 9.

Petitioner requested review by an administrative law judge.

Although CMS has moved for summary judgment, I find that this matter may be decided on the written record, without considering whether the standards for summary judgment are satisfied. The initial order in this case instructed the parties to list any proposed witnesses and to submit their written direct testimony. Acknowledgment and Prehearing Order at 3, 5 (¶¶ 4, 8) (May 10, 2017). The order also directed the parties to indicate which, if any, of the opposing side's witnesses the party wished to cross-examine and explained that an in-person hearing would be needed only if a party wishes to cross-examine the opposing side's witness. Id. at 5-6 (¶¶ 9, 10). Neither party lists any witnesses. An in-person hearing would therefore serve no purpose, and I may decide this case based on the written record without considering whether the standards for summary judgment are met.

With its brief (CMS Br.), CMS submits ten exhibits (CMS Exs. 1-10). Petitioner submits her own written argument (P. Br.) with eleven exhibits (P. Exs. 1-11). In the absence of any objections, I admit into evidence CMS Exs. 1-10 and P. Exs. 1-11.

Discussion

1. Petitioner's hearing request is adequate to preserve her right to review by an administrative law judge.1

CMS complains that Petitioner's hearing request does not specify the findings of fact and conclusions of law with which she disagrees, as required by 42 C.F.R. § 498.40(b), and should therefore be dismissed. CMS Br. at 6-8. Section 498.40(b) provides that a hearing request must "[i]dentify the specific issues, and the findings of fact and conclusions of law with which the affected party disagrees" and must "[s]pecify the basis for contending that the findings and conclusions are incorrect."

To support its position, CMS mischaracterizes a series of Departmental Appeals Board decisions. CMS suggests that those decisions compel dismissal of a hearing request that fails to meet the specificity requirements of section 498.40(b). In fact, those decisions do the opposite, rejecting "efforts to use these requirements to frustrate the good faith efforts of petitioners to perfect appeals and exercise hearing rights created by the statute." The

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Carlton at the Lake, DAB No. 1829 at 7-8 (2002) (citing Fairview Nursing Plaza, Inc., DAB No. 1715 (2005)); Alden-Princeton Rehab. and Health Care Ctr., DAB No. 1709 (1999).

The Board has stated emphatically that an affected party's good-faith efforts to appeal an allegedly erroneous decision should not be "defeated by ‘gamesmanship' or hyper-technical procedural strictures." Carlton, DAB No. 1829 at 8 (quoting Alden Nursing Ctr. – Morrow, DAB No. 1815 at 12 (2002)). The government's interest, according to the Board, "ultimately lies in the factual and legal accuracy of its determinations." Id.

For these reasons, the Board has directed administrative law judges to exercise discretion to accept "as adequate to preserve a right to hearing," id. at 11, requests that fail to "identify the specific issues and findings of fact and conclusions of law with which the affected party disagrees" and fail to "specify the basis for contending the findings and conclusions are incorrect." 42 C.F.R. § 498.40(b).

Here, CMS plainly had no difficulty figuring out the bases for Petitioner's hearing request. Unlike cases involving long-term-care facilities (Carlton, Fairview, Alden-Princeton and the like), cases involving the effective date of a supplier's Medicare enrollment present limited issues of law and fact. They involve just one (obvious) question: what is the correct Medicare enrollment date – precisely the issue that Petitioner raised in her request for review ("I would like to request an Administrative Law Judge review to reconsider the Medicare re-activation date of CheunJu Chen."). P. Ex. 11. And, as discussed below, the effective date of enrollment is the date the supplier filed her subsequently-approved enrollment application. So the only question is: when did she file her subsequently-approved application. Anyone should be able to figure that out.

CMS nevertheless suggests that the reconsidered determination was so long (five pages!) and complex, and Petitioner's hearing request was so terse that no reasonable person could determine what she was challenging. CMS Br. at 7. To put it mildly, I find this unpersuasive. The decision section of the reconsideration is one short paragraph, and its (arguably) substantive elements might cover a page – barely – if you include an irrelevant quotation.2 Most of those five pages cover peripheral matters (an introductory paragraph, a list of the documents submitted, and a detailed notice of Petitioner's appeal rights).

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I therefore deny CMS's motion to dismiss.

2. Because Petitioner filed her subsequently-approved Medicare application on November 8, 2016, that is the correct effective date for assignment of her billing privileges. 42 C.F.R. § 424.520(d).

Petitioner Chen was enrolled in the Medicare program and sought to reassign her billing privileges to her new employer, Parkway.3 On November 8, 2016, she filed, by means of Medicare's electronic filing system, the appropriate enrollment application (CMS 855R). CMS Ex. 1.4

In a December 21, 2016 e-mail, the contractor asked Petitioner to submit a certification statement, signed by the individual and the practice's authorized official.5 The e-mail warned that the contractor might reject Petitioner's application if she did not furnish "the complete information within 30 days from the date of this letter pursuant to 42 [C.F.R. §] 424.525." CMS Ex. 3 at 1. On the same day (December 21), Petitioner submitted, by fax, the signed certification statement. CMS Ex. 4.

The contractor subsequently approved Petitioner's November 8 application, but with a December 21 enrollment date. CMS Ex. 6 at 1-2.

Enrollment. Petitioner Chen participates in the Medicare program as a "supplier" of services. Social Security Act § 1861(d); 42 C.F.R. § 498.2. To receive Medicare payments for the services she furnishes to program beneficiaries, a prospective supplier must enroll in the program. 42 C.F.R. § 424.505. "Enrollment" is the process by which CMS and its contractors: 1) identify the prospective supplier; 2) validate the supplier's eligibility to provide items or services to Medicare beneficiaries; 3) identify and confirm

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a supplier's owners and practice location; and 4) grant the supplier Medicare billing privileges. 42 C.F.R. § 424.502.

To enroll, a prospective supplier must complete and submit an enrollment application. 42 C.F.R. §§ 424.510(d)(1), 424.515(a). A physician already enrolled in the program may reassign her Medicare payments to an employer and does so by filling out an enrollment application (CMS 855R). 42 C.F.R. §§ 424.80(b), 424.502.

An enrollment application is either a CMS-approved paper application or an electronic process approved by the Office of Management and Budget (PECOS). 42 C.F.R. § 424.502. When CMS determines that a prospective supplier meets the applicable enrollment requirements, it grants Medicare billing privileges, which means that the supplier can submit claims and receive payments from Medicare for covered services provided to program beneficiaries. The effective date for its billing privileges "is the later of the date of filing" a subsequently-approved enrollment application or "the date an enrolled physician ... first began furnishing services at a new practice location." 42 C.F.R. § 424.520(d) (emphasis added).

Rejecting or denying an enrollment application. CMS may reject an incomplete enrollment application if the prospective supplier "fails to furnish complete enrollment information on the ... 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). However, so long as the contractor continues to process that application to a decision, the effective date will relate back to the date of its filing. Karthik Ramaswamy, M.D., DAB No. 2563 at 5 (2014) (en banc), aff'd sub nom. Ramaswamy v. Burwell, 83 F.Supp.3d 846 (E.D. Mo. 2015).

Citing decisions from the Civil Remedies Division (which are primarily decisions by administrative law judges), CMS nevertheless argues that Petitioner is not entitled to a November 8 effective date because her initial application did not include a signed certification statement. CMS Br. at 10-11.6 This approach presents significant problems

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for CMS. First, the cited decisions have no precedential effect and are not binding; they are relevant "only to the extent that their reasoning is on point and persuasive." Monique Barbour, M.D., DAB No. 2958 at 16 (2019) (citing Avalon Place Trinity, DAB No. 2819 at 13 (2017)); Alexander C. Gatzimos, MD, JD, LLC, DAB No. 2730 at 16 (2016); Zahid Imran, M.D., DAB No. 2680 at 12 (2016). And the cases CMS relies on involved suppliers claiming effective dates of enrollment that were earlier (sometimes significantly earlier) than the dates they filed applications that were subsequently approved. See Abundant Health Family Medicine, LLC, DAB CR3209 (2014) (finding that the supplier's effective date could not be the date it attempted, unsuccessfully, to file an earlier application, even though that earlier application was not processed due to a contractor error); Linda Staiger, MD, P.C., DAB CR2551 (2012) (finding that the supplier's effective date was based on the date she filed the application that was approved, not the date she filed an earlier application that was denied.).

Even more damaging to CMS's case, is its reliance on Tri-Valley Family Medicine, Inc. for the proposition that "the receipt [by the contractor] of a signed, fully complete application ... triggers the effective date." DAB CR2179 at 10 (2010). That decision was reversed on appeal. Citing 42 C.F.R. § 424.525, the appellate panel in Tri-Valley noted that applicants are "given an opportunity to cure any deficiencies or supply any missing documentation before an application will be rejected." Tri-Valley Family Medicine, Inc., DAB No. 2358 at 5 (2010).7 CMS may deny an enrollment application if the supplier does not comply with Medicare enrollment requirements, "which include the requirement for a signature on the certification statement," and does not submit a corrective action plan. Id. at 5-6. Thus, where, as here, an application lacks necessary signatures, the regulations give the Medicare contractor two options: 1) treat the missing signature like any other missing information and request it within the regulatory deadline; or 2) treat the failure as noncompliance and deny the application. Id. at 6.

Regulatory changes, effective January 1, 2009, added section 424.520(d) (discussed above) but did not change the regulations governing the contractor's options for responding to a deficient enrollment application. The preamble to section 424.520 says that the "date of filing" is the date that a Medicare contractor receives a signed

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application that it is able to process to approval. 73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008). "This was the first indication that lack of a signature on an application might affect the timing of when a physician could get paid for covered services." Tri-Valley, DAB No. 2358 at 6. The Board concluded that nothing in the regulations or the language of the preamble indicates that the effective date should be determined by the submission of a complete application:

Instead, the regulation refers to an application that is "subsequently approved" by the contractor. It does not require that the application be "approvable"' as initially submitted. The regulatory process, which was unchanged, included provision for the contractor to request information or supporting documentation if an application was not complete. Thus, if the information or documentation was timely submitted and all other requirements were met, that application could be approved, and a provider or supplier was not required to submit an additional application. The preamble language ... recognizes this by referring to an application that the contractor is able to process to approval. Indeed, the preamble indicated agreement with the comment that that the filing date should not be the date when the application is "deemed complete and ready for approval."

Id. at 7 (citing 73 Fed. Reg. at 69,769).

For reasons unrelated to this conclusion, Tri-Valley represented a bit of a departure. The case involved an earlier application that, in the Board's view, "could have been processed to approval" had the contractor "properly requested" missing information. Tri-Valley, DAB No. 2358 at 1. Even though that earlier application was rejected (a determination that is not reviewable), and the Board was reviewing the effective date of a subsequent application, the review panel in Tri-Valley accepted, as the effective date, the filing date of the original application. Since then, the Board has soundly rejected supplier requests for review of prior applications under the guise of challenging the effective dates of their subsequently-approved applications. Ramaswamy, DAB No. 2563 at 5.

We will not determine de novo that an application could have been processed to approval in the face of the contractor's actual determination to deny the application because it was not approvable. To do so would improperly use scope of review to revisit a legally binding and administratively final determination.

Id. at 9.

The Board nevertheless agreed with the Tri-Valley conclusion that "while the contractor may require and request additional information to complete the application, the effective

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date will relate back to the date of filing so long as that application continues to be processed to a decision on whether to approve it." Id. at 5.

Conclusion

Because Petitioner filed her subsequently-approved reenrollment application on November 8, 2016, that is the correct date for assignment of her billing privileges.

• 1. My findings of fact/conclusions of law are set forth, in italics and bold, in the discussion captions of this decision.
• 2. The reconsidered determination quotes 42 C.F.R. § 424.540(b), including section 424.540(b)(2), which is plainly irrelevant here. Curiously, the determination does not mention section 424.520(d), which governs the effective date for physician/physician organization enrollment. See discussion below.
• 3. Petitioner's request for reconsideration mentions that Dr. Chen had been a member of the Parkway group practice "several years ago."" CMS Ex. 7 at 16. Nothing in the record, however, suggests that her billing privileges were deactivated pursuant to 42 C.F.R. § 424.540(a).
• 4. CMS's electronic filing system is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).
• 5. In fact, Petitioner Chen had submitted, by mail, a signed application, also dated November 8, 2016, which CMS says the contractor received on November 14. However, it was not the correct form and was not signed by the practice's authorized official. CMS Ex. 9 at 2; see CMS Br. at 10.
• 6. CMS does not argue that manual provisions control, or even influence, the outcome here, which they do not. Manual provisions do not bind me; regulations do. And, although the regulation has not changed, CMS has changed its instructions to contractors, going back and forth on how they should treat PECOS applications that are missing signatures. Compare Medicare Program Integrity Manual (MPIM) ¶ 15.17A (Rev. 582, Issued: 03-04-15; Effective 05-28-15) ("The date of filing for ... PECOS applications is the date that the contractor received an electronic version of the enrollment application and a signed certification statement submitted via paper or electronically") with MPIM ¶ 15.17A (Rev. 824, Issued: 09-05-18; Effective 10-01-18) ("The date of filing for paper Form CMS-855 applications is the date on which the contractor received the application regardless of whether the application was submitted via paper or Internet-based PECOS."). In any event, the Supreme Court recently rejected agency efforts to change reimbursement rules through sub-regulatory guidance. Azar v. Allina Health Servs., 139 S. Ct. 1804 (2019).
• 7. See the discussion below regarding the Board's subsequent misgivings about the breadth of its decision in Tri-Valley, which, nevertheless did not question Tri-Valley's rulings regarding how contractors should treat applications that lack the required signatures.