Patricia Doherty, LICSW, PLC, DAB CR5388 (2019)

DECISION

National Government Services, Inc. (NGS), an administrative contractor for the Centers for Medicare and Medicaid Services (CMS), determined that the effective date of Medicare enrollment for Patricia Doherty, LICSW, PLC (Petitioner) was March 17, 2017, and that Petitioner could not submit claims for payment for services performed or delivered earlier than February 15, 2017.  NGS affirmed the effective date on reconsideration, and Petitioner appealed.  Because March 17, 2017, is the date NGS received Petitioner’s application that it was able to process to approval, NGS correctly determined that Petitioner’s enrollment became effective March 17, 2017.  Therefore, I affirm NGS’s effective date determination.

I. Background

Petitioner is the practice of a licensed clinical social worker who has been enrolled in the Medicare program as a supplier since approximately 2009. Request for Hearing (RFH) at 2.  In November 2016, Petitioner completed a Medicare Enrollment Application (Form CMS‑855I) to enroll her private practice, Patricia Doherty, LICSW, PLC as a Medicare supplier.  RFH at 1; see also CMS Exhibit (Ex.) 1. NGS received the application on November 29, 2016. CMS Ex. 1 at 1. Petitioner’s application requested an effective date of February 1, 2017. Id. at 13. Because Petitioner requested an effective date that was

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more than sixty days in the future, NGS rejected Petitioner’s application and instructed her to resubmit the application at a later time.  Id. at 27-28.

As instructed, Petitioner re-submitted the application, which NGS received on December 19, 2016.  CMS Ex. 2 at 1.  In a series of emails dated January 5, 2017, NGS requested development of Petitioner’s application.  CMS Ex. 3 at 1-9.  Specifically, NGS requested that Petitioner use the name “Patricia J. Doherty, LICSW” on her application, match an Internal Revenue Service (IRS) document to that name, and provide a voided check with the same name.  Id. at 6-9.  NGS’s development request indicated that “failure to respond to this request within 30 days . . . may result in the rejection or denial of your application.”  Id. at 1, 4, 7.

In a February 13, 2017 email, NGS informed Petitioner that her re-submitted application had been rejected because she had failed to respond to the development request.  CMS Ex. 3 at 12.  The email also informed Petitioner that, to enroll in Medicare, she needed to complete a new application.  Id.  On March 17, 2017, NGS received a completed CMS‑855I application from Petitioner.  CMS Ex. 4.  Thereafter, in an April 17, 2017 letter, NGS informed Petitioner that her application had been approved with an “effective date” of February 15, 2017.1 CMS Ex. 4 at 28.

In her timely-filed reconsideration request, Petitioner requested an earlier effective date of February 1, 2017.  CMS Ex. 5.  Petitioner explained that she failed to timely respond to NGS’s development request because she was waiting for the IRS to produce a new Employment Identification Number (EIN) with her correct business name.  Id. at 3.  Petitioner also asserted that not moving her effective date to February 1, 2017, would cause her a “significant financial loss.”  Id.  In response, NGS issued an unfavorable reconsidered determination in a letter dated June 21, 2017.  CMS Ex. 6 at 1, 4.

Petitioner timely requested a hearing before an administrative law judge to challenge NGS’s unfavorable reconsideration decision.  RFH.  I was designated to hear and decide this case.  On September 7, 2017, I issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) that required the parties to file a pre-hearing exchange consisting of

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a brief and any supporting documents, including any Motion to Dismiss or Motion for Summary Judgment.  Pre-Hearing Order ¶ 4.  CMS filed a prehearing brief (CMS Br.), which incorporated a motion for summary judgment and seven proposed exhibits (CMS Exs. 1-7).  Petitioner filed a brief (P. Br.) without any exhibits.

Petitioner did not object to the exhibits offered by CMS.  Therefore, in the absence of objection, I admit CMS Exs. 1-7.  Neither CMS nor Petitioner offered the written direct testimony of any witness as part of its pre-hearing exchange.  As I informed the parties in my Pre-Hearing Order, “[a]n in-person hearing to cross-examine witnesses will be necessary only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine.”  Pre-Hearing Order ¶ 10.  Therefore, an in-person hearing is not necessary, and I decide this case based on the parties’ written submissions, without regard to whether the standards for summary judgment are satisfied.

II. Issue

Whether NGS, acting on behalf of CMS, properly established that Petitioner was not enrolled in Medicare prior to March 17, 2017, and could not bill Medicare for services rendered earlier than February 15, 2017.

III. Jurisdiction

I have jurisdiction to hear and 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)).

IV. Discussion

A. Applicable Legal Authority

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” 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 provider or supplier seeking billing privileges under the Medicare program must “submit enrollment information on the applicable enrollment application.  Once the provider or supplier

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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 consistent with 42 C.F.R. § 424.520 and may permit retrospective billing as provided in 42 C.F.R. § 424.521.  CMS sets the effective date of enrollment in accordance with the following:

The effective date for billing privileges for physicians, non‑physician practitioners, physician and non-physician practitioner organizations, and ambulance suppliers is the later of—

(1) The date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or

(2) The date that the supplier first began furnishing services at a new practice location.

42 C.F.R. § 424.520(d).

B. Findings of Fact and Conclusions of Law2

1. On March 17, 2017, NGS received Petitioner’s application to enroll in Medicare and subsequently approved that application.

2. Petitioner’s effective date of Medicare enrollment is March 17, 2017, with retrospective billing privileges as of February 15, 2017.

The effective date for Medicare enrollment for non-physician practitioner organizations, such as Petitioner, is either:  1) the date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or 2) 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).

NGS received an enrollment application from Petitioner on March 17, 2017.  CMS Ex. 4 at 1.  NGS subsequently approved that application with an effective date of March 17, 2017, and granted Petitioner 30 days of retrospective billing.  CMS Ex. 4 at 28.  Accordingly, as required by regulation, the effective date of Petitioner’s Medicare

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enrollment is March 17, 2017, with retrospective billing privileges effective February 15, 2017.

In support of her position that I should grant her an earlier effective date of enrollment, Petitioner argues that “issues and delays on NGS’s part . . . negatively affected [the enrollment] process.”  RFH at 2.  Petitioner also asserts that the later effective date will prevent her from receiving compensation for services she rendered in good faith.  RFH at 2; P. Br. at 2.  Further, Petitioner states that she made every effort to timely submit her application and asks me to consider the “extenuating circumstances” that prevented her from doing so.  P. Br. at 2.  However, as I explain in the following sections of this decision, Petitioner’s arguments concern issues that are beyond my jurisdiction to hear and decide.

3. I have no authority to review NGS’s decision to reject Petitioner’s December 19, 2016 enrollment application.

Petitioner submitted a CMS-855I enrollment application that NGS received on December 19, 2016.  CMS Ex. 2.  NGS requested additional information from Petitioner but ultimately rejected her application.3
 

Reject/Rejected means that the provider or supplier’s enrollment application was not processed due to incomplete information, or that additional information or corrected information was not received from the provider or supplier in a timely manner.

42 C.F.R § 424.502. CMS Ex. 3 at 12.  Petitioner argues that she failed to respond timely to the request for additional information because NGS’s request was confusing and because she was waiting for the IRS to provide information that NGS requested. RFH at 1-2.

There is no dispute that NGS rejected the application that Petitioner submitted on December 19, 2016.  CMS Ex. 3; P. Br. at 2.  To the extent Petitioner is arguing that, due to circumstances beyond her control, she was unable to meet the development timelines imposed by NGS, this amounts to an argument that NGS should not have rejected her application.  However, administrative law judges are not authorized to review a contractor’s decision to reject an enrollment application.  42 C.F.R. § 424.525(d); see also James Shepard, M.D., DAB No. 2793 at 3 (2017).  Therefore, even if NGS should not have rejected Petitioner’s December 19, 2016 enrollment application, this would not be a basis to grant her an earlier effective date.  As an appellate panel of the Departmental

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Appeals Board (DAB) observed in Shepard, a supplier’s argument that the Medicare contractor did not provide sufficient information for him to submit an approvable application “is an implicit request that we assess the reasonableness or legality of [the contractor’s] decision to reject the . . . application.  However, section 424.525(d) plainly prohibits [administrative law judge] or Board review of that decision . . . .”  DAB No. 2793 at 8.  As was the case in Shepard, Petitioner’s arguments in the present case amount to a backdoor challenge to the contractor’s rejection of her application— a determination for which there are no administrative appeal rights.  Id.

4. I cannot grant Petitioner equitable relief.

Finally, Petitioner contends that I should grant her an earlier effective date because she attempted to timely submit her application and made efforts to comply with NGS’s requirements.  Petitioner further argues that the later effective date will prevent her from receiving compensation for services that she provided to her clients in good faith.  RFH at 2.  Additionally, Petitioner asks me to consider the “extenuating circumstances” that prevented her from timely submitting her application.  P. Br. at 2.  Petitioner’s arguments amount to a request for equitable relief.  However, I may not set aside the lawful exercise of discretion by CMS or its contractor based on principles of equity.  See US Ultrasound, DAB No. 2302 at 8 (2010); Cent. Kan. Cancer Inst., DAB No. 2749 at 10 (2016).

V. Conclusion

For the reasons explained above, I affirm NGS’s determination of the effective date of Petitioner’s enrollment in Medicare to be March 17, 2017, with retrospective billing privileges effective February 15, 2017.

1. In NGS’s initial and reconsidered determinations, the CMS contractor identified February 15, 2017, as the “effective date.” However, by regulation, the “effective date” of enrollment is the date NGS received an enrollment application from Petitioner that it was able to process to completion. 42 C.F.R. § 424.520(d). Because February 15, 2017, is 30 days prior to March 17, 2017, the date NGS received Petitioner’s application, it appears that NGS incorrectly used the term “effective date” to refer to the date from which Petitioner was authorized to retrospectively bill for Medicare services. CMS Ex. 4 at 28; CMS Ex. 6 at 4. For clarity, I use the term “effective date” in this decision to refer to the effective date that is established by regulation (March 17, 2017), not the date from which retrospective billing is authorized (February 15, 2017).
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2. My findings of fact and conclusions of law appear as numbered headings in bold italic type.
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3. The regulations include the following definition:
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