Carmela Gonzales, M.D., DAB CR5712 (2020)

DECISION

Novitas Solutions, Inc. (Novitas), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), reassigned Medicare billing privileges for Carmela Gonzales, M.D. (Petitioner) to Arrhythmia Associates of NE Arkansas (Arrhythmia), effective May 16, 2018, with retrospective billing permitted from April 16, 2018.  Petitioner requested a hearing before an administrative law judge to dispute this effective date.  As explained herein, Novitas correctly determined Petitioner’s reassignment effective date to be May 16, 2018.  I therefore affirm CMS’s effective date determination.

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I. Background

On March 19, 2018, Novitas received a Form CMS-855R1 from Petitioner seeking to reassign her billing privileges to Arrhythmia.  CMS Exhibit (Ex.) 1.  In section 5 of that reassignment application, Petitioner specified the following contact information:  “Cary Ball PO Box 609 Jonesboro AR 72403.”  Id. at 5.  On March 26, 2018, Novitas requested Petitioner to revise her application by providing her printed name, new signature date, and original signature in section 6A, as well as the printed name, new signature date, and original signature of an authorized or delegated official in section 6B.  CMS Ex. 2 at 1.  Novitas advised Petitioner that it might reject her application if she did not furnish complete information “within 30 calendar days from the postmarked/emailed date of this letter . . . .”  Id.  Novitas addressed that letter to “CARMELA GONZALES ATTN CARY BALL PO BOX 604 JONESBORO AR 72403.”  Id.

Petitioner responded to Novitas on April 16, 2018, providing the requested information in section 6A, but missing the signature date in section 6B.  CMS Ex. 3 at 6.  Petitioner’s response included a copy of the incorrectly addressed March 26, 2018 letter.  Id. at 9-10. Novitas notified Petitioner on April 25, 2018 that it rejected her CMS-855R application for failure to provide the information it had previously requested.  CMS Ex. 4 at 1.  Novitas informed Petitioner that she would need to “complete a new Medicare enrollment application(s).”  Id.  Novitas specified that Petitioner needed to provide a complete response to questions 3 and 4 in section 2C of the application and sign and date a new certification statement in section 15 of the resubmitted application.  Id.  This letter was also incorrectly addressed to “CARMELA GONZALES ATTN CARY BALL PO BOX 604 JONESBORO AR 72403.”  Id.

On May 16, 2018, Petitioner electronically submitted a new CMS-855R application.  CMS Ex. 5 at 1.  Novitas approved this application, reassigned Petitioner’s billing privileges to Arrhythmia with an effective date of May 16, 2018, and granted 30 days of retrospective billing from April 16, 2018.2  CMS Ex. 6 at 2.

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Petitioner sought reconsideration and requested an earlier effective date, arguing that she had submitted signed forms as requested by Novitas, but still received a rejection letter.  CMS Ex. 7 at 8.  Novitas nevertheless affirmed its effective date determination in a reconsidered determination dated September 11, 2018.  CMS Ex. 8.

Petitioner timely sought hearing before an administrative law judge in the Civil Remedies Division and I was designated to hear and decide this case.  On September 28, 2018, I issued an Acknowledgment and Prehearing Order (Pre-Hearing Order) that required each party to file a pre-hearing exchange and supporting documents.  Pre-Hearing Order ¶ 4.  CMS timely filed a Motion for Summary Judgment or in the alternative, Pre-Hearing Brief (CMS Br.), along with eight exhibits (CMS Exs. 1-8).  Petitioner subsequently filed her Response to CMS’s Motion for Summary Judgment and Pre-Hearing Brief (P. Br.).3

II. Decision on the Written Record and Admission of Exhibits

Petitioner did not object to the exhibits offered by CMS.  I admit CMS Exs. 1-8 into evidence.  Neither party offered written direct testimony of any witness as part of its pre‑hearing exchange, meaning an in-person hearing is not necessary in this matter.  Pre‑Hearing Order ¶¶ 8-10; Civ. Remedies Div. P. §§ 16(b), 19(b).  Therefore, I will decide this case on the record, based on the parties’ written submissions and arguments.  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 Novitas, acting on behalf of CMS, properly established May 16, 2018, as the effective date for reassignment of Petitioner’s Medicare billing privileges.

IV. Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2); see also Social Security Act (Act) § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

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

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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)(1).  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 under 42 C.F.R. § 424.521(a).

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.  Act § 1842(b)(3)(B)(ii) (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.  Act § 1842(b)(6) (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) (CMS Pub. 100-08)  §§ 15.5.20(E)(3), 15.17.4

B.  Analysis

1.  The effective date of Petitioner’s Medicare enrollment application is May 16, 2018, as that is the date Novitas received the application it subsequently processed to approval.

On May 16, 2018, Petitioner submitted a reassignment application that Novitas ultimately processed to approval.  CMS Exs. 5, 6.  The record before me reflects no earlier application submitted by Petitioner that was approved by Novitas.  Therefore, pursuant to 42 C.F.R. § 424.520(d), the date Petitioner filed its subsequently approved reassignment application – May 16, 2018 – is the correct effective date of reassignment for Petitioner’s billing privileges.  Urology Grp. of NJ, LLC, DAB No. 2860 at 7-9 (2018); Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017).  Pursuant to 42 C.F.R. § 424.521(a)(1),

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Novitas also granted Petitioner 30 days of retrospective billing, the maximum retroactive period permitted, which allowed her to bill Medicare for services from April 16, 2018.

2.  I have no authority to review Novitas’s decision to reject Petitioner’s earlier application.

Petitioner argues that she should be awarded an effective date of February 15, 2018 based on her March 15, 20185 application.  P. Br. at 1-2.  Petitioner, however, provided no legal basis for her contention.  In fact, Petitioner may not seek my review of Novitas’s decision to reject that application because that rejection is not an initial determination under 42 C.F.R. § 498.3(b) that affords her appeal rights.  The regulations explicitly state that a supplier like Petitioner may not appeal the rejection of an application in this forum.  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).

In any event, the record does not suggest Novitas’s rejection was improper.  Novitas rejected Petitioner’s March 19, 2018 application because she did not provide information the contractor requested to develop her application within the 30-day timeline.  CMS Exs. 2, 3, 4.  And while Petitioner did respond within 30 days, she did not provide the missing signature date in section 6B that Novitas had requested.  CMS Ex. 3 at 6.  Because Petitioner did not provide the information sought by Novitas to complete her application within 30 days, Novitas had a basis to reject her March 19, 2018 application. 

Petitioner points out that Novitas incorrectly addressed its March 26, 2018 development request to P.O. Box 604, Jonesboro, AR 72403, instead of P.O. Box 609, Jonesboro, AR 70403, the address she actually identified in her initial reassignment application.  P. Br. at 2.  However, Petitioner submitted a copy of Novitas’s March 26, 2018 request for revisions along with her response to that letter.  CMS Exs. 2, 3.  And, it appears Novitas faxed the March 26, 2018 request to Petitioner on April 9, 2018.  CMS Ex. 3 at 9-11.  Therefore, while Novitas did make a clerical error, it did not preclude Petitioner from attempting to provide the requested information within the 30-day timeframe Novitas provided for revisions.6  Finally, to the extent Petitioner argues there was a second

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development letter dated April 16, 2018, that letter has not been submitted by either CMS or Petitioner and is not part of the record before me.

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

In her request for reconsideration, Petitioner argued that relying on the initial application submission in March 2018, Petitioner started interpreting studies with a date of service preceding the currently assigned effective date.  CMS Ex. 7 at 8. While I am sympathetic to Petitioner’s claim that she should be paid for services honestly rendered to the Medicare program’s beneficiaries, her request has no basis in law and is therefore a plea for equitable relief.  Unfortunately, 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).

My jurisdiction is limited to review of CMS’s determination of the effective date of Petitioner’s reassignment application under 42 C.F.R. § 424.520(d).  As I have explained, Novitas properly determined, pursuant to the controlling regulations, that May 16, 2018 is Petitioner’s effective date, as that is the date Novitas received an application that it was able to successfully approve.  Therefore, the effective date of May 16, 2018 must stand.

VI. Conclusion

For the foregoing reasons, I affirm CMS’s determination of the effective date of Petitioner’s reassignment to be May 16, 2018, with retrospective billing permitted from April 16, 2018.

• 1. This standardized CMS form allows a Medicare program biller to reassign his or her right to bill Medicare for services rendered to Medicare beneficiaries to an eligible organization or group of which that biller is a member or to terminate such reassignment of benefits.
• 2. Novitas’s initial determination mistakenly identifies April 16, 2018 as the “effective date” of Petitioner’s reassigned billing privileges.  CMS Ex. 6 at 2.  Though not as explicit, its reconsidered determination also appears to identify April 25, 2018 as the effective date.  CMS Ex. 8 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).  Consistent with the regulations, I use the term “effective date” in this decision to refer to the date Novitas received an application from Petitioner it eventually approved (May 16, 2018), not the date from which it authorized retrospective billing (April 16, 2018).
• 3. Though Petitioner references “Petitioner Exhibit 1” in her brief, see P. Br. at 2, no such exhibit was filed by Petitioner.
• 4. CMS manuals can be found online at
  https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Internet-Only-Manuals-IOMs.
• 5. In her brief, Petitioner states that she initially submitted a CMS-855R application on March 15, 2018.  P. Br. at 1.  Novitas, however, did not receive Petitioner’s initial application until March 19, 2018.  CMS Ex. 1 at 7-8.
• 6. One could infer that because of the mislabeling by Novitas, Petitioner did not have a full 30 days in which to respond to the contractor’s development request.  But Novitas did not actually deny her March 19, 2018 application until April 25, 2018.  CMS Ex. 4.  Whether by intent or happenstance, Novitas allowed Petitioner an additional seven days to provide revisions.  Of course, assuming receipt of the development request no earlier than the April 9, 2018 facsimile transmission, Petitioner had only 16 days to provide the requested information.  Novitas’s reconsidered determination takes no notice of its error, suggesting the contractor’s hearing officer was unaware of the mistake.  CMS Ex. 8.  Under these facts, it might have been reasonable for CMS to permit Petitioner an opportunity to develop her earlier application.  Unfortunately, as I explain herein, I do not have the authority to do so.  But given the errors made by its contractor, CMS counsel can – and should – inquire with her client to determine if such a course of action is appropriate.