Zia Rahman, MD, DAB CR5703 (2020)

DECISION

The effective date of the Medicare enrollment and reassignment of billing privileges of Petitioner, Zia Rahman, MD, is October 1, 2019, with retrospective billing privileges authorized beginning September 1, 2019.

I.  Background and Procedural History

Petitioner is a cardiologist.  See Centers for Medicare and Medicaid Services (CMS) Ex. 2 at 1.  On October 1, 2019, Wisconsin Physicians Service Insurance Corporation (WPS), a Medicare administrative contractor, received Petitioner's Form CMS-855I and 855R applications to enroll in the Medicare program and reassign his benefits to Cotton O'Neil Clinic Revocable Trust.  CMS Ex. 2 at 1, 4, 9-10.  On November 16, 2019, WPS approved Petitioner's applications, effective September 1, 2019.1  CMS Ex. 3 at 2.

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In a letter dated January 8, 2020, Petitioner requested reconsideration of the effective date assigned for his Medicare enrollment and reassignment of benefits.  CMS Ex. 4 at 1.  Petitioner requested a June 2, 2019 effective date for his enrollment, explaining that his provider enrollment coordinator had erred when she previously submitted enrollment applications that had been rejected on June 20, 2019.  CMS Ex. 4 at 1.

WPS issued a reconsidered determination on February 12, 2020, in which it stated that Petitioner "has not provided evidence to definitively support an earlier effective date" and that it could not grant "a change in the effective date."2  CMS Ex. 1 at 2.

Petitioner submitted a request for an administrative law judge (ALJ) hearing on February 28, 2020.  Thereafter, the Civil Remedies Division issued my standing pre-hearing order (Pre-Hearing Order) that directed the parties to file their respective pre-hearing exchanges.  CMS filed a motion for summary judgment and supporting memorandum of law, along with four proposed exhibits (CMS Exs. 1-4).  Petitioner filed a response that I construe as a brief (P. Br.).3

Neither party has submitted written direct testimony, as addressed in sections 11 through 13 of the Pre-Hearing Order.  A hearing for the purpose of cross-examination is therefore unnecessary.  I consider the record in this case to be closed, and the matter is ready for a decision on the merits.4

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II.  Issue

Whether the effective date of Petitioner's Medicare enrollment and reassignment of benefits is October 1, 2019, with retrospective billing privileges authorized beginning September 1, 2019.

III.  Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R § 498.3(b)(15); Victor Alvarez, M.D., DAB No. 2325 at 8-12 (2010); 42 U.S.C. § 1395cc(j)(8).

IV.  Findings of Fact, Conclusions of Law, and Analysis5

Pursuant to 42 C.F.R. § 424.520(d), the effective date of Petitioner's enrollment and reassignment of benefits is October 1, 2019, which is the date of receipt of the Medicare enrollment applications that WPS was able to process to approval, and retrospective billing privileges are authorized beginning September 1, 2019, pursuant to 42 C.F.R. § 424.521(a)(1).

As a cardiologist, Petitioner is a "supplier" for purposes of the Medicare program.  See CMS Ex. 2 at 1; see also 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202 (definition of supplier), 498.2.  A "supplier" furnishes items or services under Medicare and the term applies to physicians or other practitioners who are not included within the definition of the phrase "provider of services."  42 U.S.C. § 1395x(d).  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 at 42 C.F.R. Part 424, subpart P, establish the requirements for a supplier to enroll in the Medicare program.  42 C.F.R. §§ 424.510-424.516; see also 42 U.S.C. § 1395cc(j)(1)(A) (authorizing the Secretary of the U.S. Department of Health and Human Services to establish regulations addressing the enrollment of providers and suppliers in the Medicare program).  A supplier who seeks billing privileges under Medicare "must submit enrollment information on the applicable enrollment application."  42 C.F.R. § 424.510(a)(1).  "Once the provider or supplier successfully completes the enrollment process . . . , CMS enrolls the provider or supplier into the Medicare program."  Id.; see also 42 C.F.R. § 424.510(d) (listing enrollment requirements for suppliers).  When the contractor approves an enrollment application, it sets the effective date for approval of billing privileges.  See Alexander C. Gatzimos, MD, JD, LLC, DAB No. 2730 at 2 (2016).  "The effective date of a physician's or physician organization's enrollment in Medicare is 'the later of the date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor or the date [the supplier] first began furnishing services at a new practice location.'"  Gatzimos, DAB No. 2730 at 2-3, citing

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42 C.F.R. § 424.520(d) (addressing the effective date of enrollment, for inter alia, physicians and non-physician practitioners); see Gaurav Lakhanpal, MD, DAB No. 2951 at 6 (2019) ("the effective date of . . . reassignment of billing privileges is . . . the date that [the contractor] received [the] reassignment application that was subsequently approved.").  When a supplier has submitted a prior enrollment application that has been rejected, the prior application will not serve as the basis upon which to assign an earlier effective date of enrollment and billing privileges.  Wishon Radiological Medical Group, Inc., DAB No. 2941 at 6 (2019) (stating that 42 C.F.R. § 424.525(d) "expressly provides that the rejection of an enrollment application is not appealable," and that section 424.525(d) "would be rendered null" if a supplier could challenge a previously rejected application through an appeal of the effective date stemming from a subsequent application).

The Departmental Appeals Board has explained that "[t]he governing law on how CMS (and its Medicare contractors) determine the effective date for [suppliers] applying for Medicare billing privileges is set by regulation" at 42 C.F.R. § 424.520(d).  Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017).  Petitioner explained that his previously submitted Medicare enrollment and reassignment applications had been rejected on June 20, 2019.  CMS Ex. 4 at 1; see P. Br. at 15-20 (copy of June 20, 2019 emails rejecting Petitioner's applications).  Petitioner further explained that his provider enrollment coordinator again submitted applications on August 16, 2019, and that these applications had once again been rejected on August 27, 2019, based on an "error in [the] selection of the state."  Request for Hearing at 1; see P. Br. at 22-24 (copy of August 27, 2019 email message rejecting Petitioner's Form CMS-855R enrollment application).  Petitioner reported that he submitted a new application "for the state of Kansas" on October 1, 2019, and after he corrected that application, WPS approved his enrollment "with an effective date of 9/1/2019."  Request for Hearing at 1.

Petitioner seeks billing privileges effective July 1, 2019, which is the date he became affiliated with his medical practice.  Request for Hearing at 1.  However, Petitioner identified no error on the part of WPS in assigning an October 1, 2019 effective date based on the receipt date of the applications, nor has Petitioner contended that WPS erred in authorizing billing privileges 30 days earlier, beginning September 1, 2019.  Rather, Petitioner is essentially seeking an effective date of July 1, 2019, for the purpose of rectifying the errors in his provider enrollment coordinator's submissions and to presumably mitigate the adverse impact of his considerable delay in re-submitting enrollment applications after their rejection.6  P. Br. at 1, 3; see Request for Hearing at  1‑2.

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The earliest possible effective date for Petitioner's enrollment and reassignment of benefits is October 1, 2019, pursuant to 42 C.F.R. § 424.520(d), because that is the date WPS first received his enrollment applications that could be processed to approval.  CMS Ex. 2 at 1, 5-6, 9.  Billing privileges are authorized beginning up to 30 days earlier pursuant to 42 C.F.R. § 424.521(a)(1), and therefore, Petitioner's billing privileges are effective on the earliest possible date allowed by law, September 1, 2019.  Accordingly, I conclude that, pursuant to 42 C.F.R. § 424.520(d), the effective date of Petitioner's reassignment of benefits is October 1, 2019, with retrospective billing privileges beginning September 1, 2019.  See Lakhanpal, DAB No. 2951 at 6.

To the extent that Petitioner's request for relief is based on principles of equitable relief, I cannot grant such relief.  US Ultrasound, DAB No. 2302 at 8 (2010) ("Neither the ALJ nor the [DAB] is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.").  Petitioner points to no authority by which I may grant him relief from the applicable regulatory requirements, and I have no authority to declare statutes or regulations invalid or ultra vires.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) ("An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground . . . .").

V.  Conclusion

For the foregoing reasons, I uphold the October 1, 2019 effective date of Petitioner's enrollment and reassignment of billing privileges, with retrospective billing privileges authorized beginning September 1, 2019.

• 1. Although an effective date of a reassignment of benefits is set in accordance with 42 C.F.R. § 424.520(d), CMS or its contractor may permit retrospective billing for 30 days prior to the effective date if "circumstances precluded enrollment in advance of providing services to Medicare beneficiaries."  42 C.F.R. § 424.521(a)(1).  WPS used imprecise language when it stated that it had assigned a September 1, 2019 effective date for Petitioner's reassignment of benefits.  In actuality, WPS assigned an October 1, 2019 effective date for the reassignment of benefits, based on the receipt date of the application, pursuant to 42 C.F.R. § 424.520(d), and it authorized retrospective billing privileges beginning 30 days earlier, on September 1, 2019, pursuant to 42 C.F.R. § 424.521(a)(1).
• 2. WPS's reconsidered determination upholding the initial determination is considerably lacking in analysis and detail.  In fact, the reconsidered determination neither addresses the specific effective date of enrollment and reassignment of benefits nor the specific effective date of billing privileges.  CMS Ex. 1.
• 3. Petitioner did not comply with section 14 of the Civil Remedies Division Procedures and section 9 of the Pre-Hearing Order, which, inter alia, require a party to submit supporting evidence as separate exhibits accompanied by an exhibit list.  Further, because Petitioner did not paginate his brief and appendices, I refer to the .pdf version of the document when I cite to specific page numbers.
• 4. Because a hearing is unnecessary, I need not address whether summary judgment is appropriate.
• 5. Findings of fact and conclusions of law are in bold and italics.
• 6. Petitioner does not explain why he delayed submitting the October 1, 2019 applications after receiving notice of the previously rejected applications.  Had Petitioner re-submitted applications that could be processed to approval immediately after he received notice on June 20, 2019, that his applications had been rejected, he could have established billing privileges prior to the July 1, 2019 effective date he currently seeks.