Tualatin Internal Medicine, DAB CR5699 (2020)

DECISION

Petitioner, Tualatin Internal Medicine, challenges the determination of its effective date of enrollment as a biller in the Medicare program by Noridian Healthcare Solutions (NHS), an administrative contractor for Respondent, the Centers for Medicare & Medicaid Services (CMS).  As explained herein, I find NHS correctly established January 31, 2018 as the effective date of Petitioner’s Medicare enrollment and associated billing privileges.  I therefore affirm CMS’s effective date determination.

I.  Background

On August 13, 2017, NHS received a CMS-855I application for individual enrollment from Petitioner to associate Adam Glaser, M.D. with a group that was not yet established.  CMS Exhibit (Ex.) 1 at 2.  On September 6, 2017, NHS received a CMS-855B application to enroll the group, Tualatin Internal Medicine, as a new Medicare supplier.  On September 19, 2017, NHS requested additional information from Petitioner concerning the group application.  CMS Ex. 9 at 10-12.  NHS advised Petitioner to submit the requested information by October 15, 2017 and warned the application could

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be rejected if Petitioner did not furnish the additional information by that date.  Id. at 10.  Petitioner twice e-mailed NHS, on September 19, 2017 and October 13, 2017, to advise the requested documents had been faxed.  Id. at 8-9.  Petitioner attached the same documents by e-mail and asked whether the requested revisions needed to be mailed as well.  Id.  On October 16, 2017, NHS responded that it was unnecessary to mail any documents except for the supplier-provider agreement form, which Petitioner indicated would be mailed immediately.1  Id. at 8.

Petitioner again followed up with NHS by e-mail on October 23, 2017, and again re-sent the attachments it had earlier provided.  Id. at 1-2.  On October 25, 2017, for the first time, NHS explicitly advised Petitioner that “the corrections are not included” and attached a copy of the original request for revisions provided to Petitioner on September 19, 2017.  Id. at 1.  Petitioner responded by e-mail the same day, asserting it would provide the requested documents immediately.  Req. for Hearing, Supporting Documents at 1. 

On October 31, 2017, NHS rejected Petitioner’s application for failing to provide the additional information NHS had requested.  CMS Ex. 8.  Because Petitioner’s group application had been rejected, NHS subsequently rejected Dr. Glaser’s individual application submitted on August 13, 2017.  CMS Ex. 1 at 2. 

On November 17, 2017, NHS received a second group application for enrollment from Petitioner.  CMS Ex. 6 at 1; P. Ex. 2 at 1.  NHS again requested additional information to process the application on December 15, 2018.  CMS Ex. 7.  NHS advised Petitioner to submit the requested information by January 15, 2017 and warned the application could be rejected if Petitioner did not do so.  Id. at 1.  Petitioner failed to submit all of the requested information, and on January 16, 2018, NHS again rejected Petitioner’s enrollment application.  CMS Ex. 6.

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Petitioner filed another group enrollment application received by NHS on January 31, 2018.  P. Ex. 6 at 2.  On February 7, 2018, NHS requested additional information from Petitioner with a warning to provide the requested information by March 9, 2018 or again be rejected.  CMS Ex. 5 at 1.  NHS rejected Petitioner’s application on March 12, 2018.  P. Ex. 6 at 1-2.  On March 27, 2018, NHS responded to a congressional inquiry from Representative Earl Blumenauer, who at the behest of his constituent Dr. Glaser had inquired into Petitioner’s numerous failed attempts to enroll.  CMS Ex. 3.  Subsequently, as CMS barely acknowledges in a masterwork of passive voice, “it was determined that the application would be reworked and ultimately it was approved with a billing date of January 1, 2018.”  CMS Br. at 3 n.1, citing CMS Ex. 1 at 2.  NHS subsequently approved Petitioner’s application on March 26, 2018, with an “effective date” of January 1, 2018.2  CMS Ex. 4. 

Petitioner sought reconsideration by NHS on April 4, 2018, requesting an effective date of August 6, 2017.  CMS Ex. 2.  On April 23, 2018, NHS affirmed its initial determination.  CMS Ex. 1.  Petitioner timely requested a hearing before an administrative law judge in the Civil Remedies Division, and I was designated to hear and decide this case. 

II.  Decision on the Written Record and Admission of Exhibits

CMS filed a Pre-hearing Brief and Motion for Summary Judgment (CMS Br.) along with nine exhibits (CMS Exs. 1-9).  Petitioner filed a statement from Representative Blumenauer entitled “Glaser Adam Letter of Support” which I construe to be its brief (P. Br.) along with six exhibits (P. Exs. 1-6).

As neither party objected to the opposing party’s exhibits, I admit CMS Exs. 1-9 and P. Exs. 1-6 into evidence.  Because neither party offered written direct testimony of any witness, an in-person hearing will not be necessary.  Pre-hearing Order ¶¶ 8-10; Civ. Remedies Div. P. §§ 16(b), 19(b).  I decide this case on the written record before me.  Civ. Remedies Div. P. § 19(d).  CMS’s motion for summary judgment is denied as moot.

III.  Issue

The issue in this case is whether NHS, acting on behalf of CMS, properly established January 31, 2018, as the effective date for Petitioner’s Medicare billing privileges.

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IV.  Jurisdiction

Pursuant to 42 C.F.R. §§ 498.3(b)(15) (the effective date of a Medicare supplier approval is an initial determination by CMS) and 498.5(l)(2) (a supplier dissatisfied with a reconsidered determination is entitled to a hearing before an administrative law judge (ALJ)), I have jurisdiction to decide this case. 

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

A.  Applicable Law

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” like Petitioner 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 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 retrospective billing date that is 30 or 90 days prior to the effective date under 42 C.F.R. § 424.521(a)(1)-(2).

B.  Analysis

1.  NHS received Petitioner’s Medicare enrollment application on January 31, 2018 and subsequently processed that application to approval, making that date the effective date of its enrollment.

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 allow suppliers to “retrospectively

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bill” Medicare, meaning CMS permits a supplier to bill Medicare for services occurring up to thirty days before the effective date of enrollment, if certain circumstances apply.  42 C.F.R § 424.521(a)(1).

CMS need only prove one thing to prevail in this matter – the date NHS received an enrollment application from Petitioner it processed to completion.  But despite this low evidentiary bar, CMS did not bother to proffer the actual application Petitioner submitted on January 31, 2018, which by virtue of its electronic submission through the Provider Enrollment, Chain and Ownership System would conclusively prove the date of receipt beyond doubt.  CMS instead baldly asserts NHS’ receipt of Petitioner’s enrollment application on January 31, 2018.  CMS Br. at 6, citing CMS Exs. 1 and 4.  The reconsidered determination by NHS similarly asserts receipt on that date.  CMS Ex. 1 at 3.3

It is insufficient for the government to leave me to speculate as to the evidentiary basis for its case.  U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”).  However, rather than order supplemental briefing and submissions from CMS that could prejudice Petitioner by further delaying these proceedings, I have reviewed the record and found sufficient evidence to render a decision in this case. 

There is only one piece of evidence in the record before me that confirms NHS received Petitioner’s application on January 31, 2018 – submitted by Petitioner, not CMS – the initial denial of that application on March 12, 2018.  P. Ex. 6 at 1-2.  That notice of denial explicitly states “We received your Medicare enrollment application(s) on January 31, 2018.”  Id. at 2. 

This is not the best evidence to document receipt of Petitioner’s application on that date, but in the absence of any contradictory evidence, I find it more likely than not that Petitioner indeed filed an application received by NHS on January 31, 2018.  The document proffered by Petitioner is a business record memorializing communication between NHS and Petitioner.  CMS did not dispute its admission and therefore waived any objection to foundation or authenticity.  And while there are multiple earlier applications referenced in the record before me, there is no evidence suggesting a later one that could have been the subject of the denial.  Finally, this document is consistent with NHS’s assertion in the reconsidered determination that it received Petitioner’s latest application on January 31, 2018.  CMS Ex. 1 at 3.  As such, I find the effective date of

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Petitioner’s Medicare enrollment to be January 31, 2018.  42 C.F.R. §§ 424.520(d), 424.521(a)(1).

2.  I have no authority to review NHS’s decision to reject Petitioner’s earlier applications.

It is clear from the record before me that Petitioner earnestly sought to enroll in the Medicare program since August 2017 and despite repeated efforts to do so, was unsuccessful.  Unfortunately, I have no authority to review NHS’ previous denials of Petitioner’s applications as they are not subject to ALJ review as initial determinations under 42 C.F.R. § 498.3(b).  Indeed, the regulations explicitly state that rejected enrollment applications may not be appealed.  42 C.F.R. § 424.525(d); see also James Shepard, M.D., DAB No. 2793 at 8 (2017) (providing 42 C.F.R. § 424.525(d) “plainly prohibits” ALJ review of a rejected application because there are no appeal rights for such a determination).

3.  I have no authority to consider Petitioner’s equitable arguments.

Petitioner points out that it submitted multiple applications NHS rejected for seemingly picayune reasons, including corrections purportedly not being received, sections being incomplete due to the group name not matching corresponding documents, and not providing the full address of a financial institution.  Req. for Hearing; P. Br. at 1.  Petitioner alleges that recognizing its mistakes, NHS had assured Petitioner it would establish a date in August 2017 as the effective date.  Id.

It is unclear from the record who was at fault, and to what degree, for the multiple failed applications prior to the one at issue before me.  Certainly, the fact that Petitioner was unable to successfully enroll until its principal requested Congressional intervention is concerning, and does not suggest the fault lies entirely with Petitioner.  CMS should give this matter closer scrutiny and determine whether an earlier effective date would be appropriate as a matter of equity. 

Unfortunately, while Petitioner may reasonably believe it is entitled to an earlier enrollment date in reliance on NHS’ assurances, I have no authority to grant Petitioner such equitable relief.  See, e.g., US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”); Pepper Hill Nursing & Rehab. Ctr., LLC, DAB No. 2395 at 11 (2011) (holding that the ALJ and Board were not authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements); UpturnCare Co., DAB No. 2632 at 19 (2015) (providing the Board may not overturn denial of provider enrollment in Medicare on equitable grounds).

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My jurisdiction is limited to review of CMS’s determination of the effective date of Petitioner’s enrollment application under 42 C.F.R. § 424.520(d).  As I have explained, there is sufficient evidence in the record for me to determine NHS properly selected January 31, 2018 as the effective date of Petitioner’s enrollment, as that is the date NHS received the application it subsequently approved.  Therefore, the effective date of January 31, 2018 must stand.

VI.  Conclusion

For the reasons explained above, I affirm the effective date of Petitioner’s Medicare enrollment to be January 31, 2018, with retrospective billing permitted from January 1, 2018.

• 1. CMS asserts an “NHS representative confirmed that each of these emails included only the original information sent with no corrections.”  CMS Br. at 2.  Presumably, CMS relies on NHS’s characterization in its reconsidered determination. CMS Ex. 1 at 2 (“The representative confirmed that the corrections received were copies of the original information sent.”).  This is an exercise in sophistry.  It is clear that Petitioner’s employee, Julia Puckett, believed she had already submitted the necessary forms by facsimile, and followed up to obtain the status of the application and clarify whether she needed to mail those same documents.  CMS Ex. 9 at 8-9.  NHS employee Gloria Oliver’s October 16, 2017 response does not attempt to correct Ms. Puckett’s mistaken belief that she had submitted the necessary documents.  Instead, Ms. Oliver states, “You do not have to mail all the corrections.  Only the [supplier authorization form] is required to be mailed.”  Id. at 8.  It appears Ms. Oliver misunderstood Ms. Puckett’s effort to clarify what else Petitioner needed to supply, while Ms. Puckett misunderstood the implication from Ms. Oliver’s response that Petitioner still needed to submit revisions.  CMS and its contractor do a disservice to their own credibility by characterizing this exchange as they did, particularly since NHS had the good sense not to engage in similar obfuscation when summarizing its communications with Petitioner to a member of Congress.  CMS Ex. 3 at 2.
• 2. NHS erroneously (and repeatedly) refers to January 1, 2018 as Petitioner’s effective date.  CMS Ex. 1 at 3; CMS Ex. 2 at 2; CMS Ex. 4 at 2.  However, the regulations distinguish between an effective date and the date from which retrospective billing is permitted.  See 42 C.F.R. §§ 424.520(d), 424.521(a)(1).  By applying the maximum 30 days permitted by the regulations for retrospective billing and permitting Petitioner to bill from January 1, 2018, NHS must have established January 31, 2018 as the actual effective date.  See id.
• 3. To the extent CMS believes it appropriate to simply point to assertions in the reconsidered determination as competent evidence, I note that if it was unnecessary to cite actual documentary evidence to support the underlying findings at issue before me, CMS counsel would have no role to play at all in these proceedings. CMS could simply file the reconsidered determination and hope Petitioner files nothing to contradict its contractor. As should be clear, I do not take this low view of government counsel as a potted plant.