Carraway Chiropractic Center, PLLC, DAB CR5454 (2019)

DECISION

The effective date of Medicare enrollment and billing privileges of Petitioner, Carraway Chiropractic Center, PLLC, is April 23, 2018, with retrospective billing allowed beginning March 24, 2018.

I. Background and Procedural History

Petitioner, a clinic/group practice, submitted a Form CMS-855I enrollment application with supporting documents via the U.S. Postal Service on April 20, 2018, that was received on April 23, 2018. Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 4, 38 (postmark date of April 20, 2018, and stamped markings indicating receipt on the 113th day of 2018). On June 15, 2018, Palmetto GBA (Palmetto) approved Petitioner's application and assigned a March 24, 2018 effective date for Petitioner's Medicare billing privileges.1 CMS Ex. 4 at 1.

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Petitioner submitted a request for reconsideration dated June 15, 2018. 2 Petitioner (P.) Ex. 5. In its request, Petitioner stated the following:

We are respectfully requesting an effective date of 01/01/18 for the following reason: We incorporated our practice [and] required a new tax ID number. However, the IRS issued the number in the wrong practice name. We did not want to start the Medicare enrollment process with this incorrect tax ID document, so we waited until that issue was resolved, which required several requests to the IRS and was significantly delayed. [We] have attached copies of the IRS application, their response, and the corrected document, which we finally received on 4-16-18.

P. Ex. 5 at 1.

Palmetto issued a reconsidered determination on September 14, 2018, in which it stated that it had "reviewed the specific facts associated with [Petitioner's] enrollment application and the effective date established, and unfortunately, we are not able to make a change to the effective date of filing." P. Ex. 6 at 1.

Petitioner submitted a request for an administrative law judge (ALJ) hearing that was received on November 8, 2018. ALJ Leslie A. Weyn issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) on November 29, 2018, at which time she directed the parties to file their respective pre-hearing exchanges.3 CMS filed a brief in support of summary judgment, along with four proposed exhibits (CMS Exs. 1-4). Petitioner filed a brief (P. Br) and six proposed exhibits (P. Exs. 1-6).  In the absence of any objections, I admit CMS Exs. 1-4 and P. Exs. 1-6 into the evidentiary record.

A hearing for the purpose of cross-examination is unnecessary because neither party has submitted written direct testimony. Pre-Hearing Order §§ 8-10. 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 billing privileges is April 23, 2018, with retrospective billing beginning March 24, 2018.

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); see also 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) and 424.521(a)(1), Petitioner's Medicare enrollment and billing privileges were effective April 23, 2018, which is the date Palmetto received the enrollment application that it processed to approval, with retrospective billing allowed beginning on March 24, 2018.

As a clinic/group practice, Petitioner is a "supplier" for purposes of the Medicare program. See CMS Ex. 1 at 20; 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). 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

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date [the supplier] first began furnishing services at a new practice location.'" Id. at 2-3, citing 42 C.F.R. § 424.520(d).

The Departmental Appeals Board (DAB) 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). Even though Petitioner argues that it should be able to bill for services rendered dating back to January 1, 2018, it did not submit an enrollment application to Palmetto until April 23, 2018. CMS Ex. 1 at 1. Therefore, the earliest possible effective date for Petitioner's enrollment and billing privileges is the later date of April 23, 2018, with retrospective billing allowed beginning on March 24, 2018. 42 C.F.R. §§ 424.520(d), 424.521(a)(1). Accordingly, I conclude that Petitioner's billing privileges began no earlier than March 24, 2018.

Petitioner does not contend that it submitted an enrollment application prior to April 23, 2018. Rather, Petitioner explains that when it reincorporated its business in December 2017, the Internal Revenue Service (IRS) listed the wrong business name in its December 14, 2017 notice containing Petitioner's employer identification number (EIN). P. Br. at 1. Specifically, Petitioner explains that the IRS notice listed "LLC" in Petitioner's business name, when in fact "PLLC" is the business structure that it lists in its business name. P. Br. at 1; see P. Exs. 1, 2. Petitioner explained that it was reluctant to submit its Medicare enrollment application until it received corrected EIN documentation from the IRS.6 P. Br. at 1.

Petitioner does not contend that Palmetto committed any error when it allowed Petitioner to begin billing Medicare effective March 24, 2018. P. Br. at 1. Rather, Petitioner acknowledges its own delay in submitting the enrollment application. P. Br. at 1 ("Since our document from the IRS did NOT contain our Legal Business Name, we were hesitant to submit the application and attest with information we knew to be false. We now understand that CMS will only establish an effective date 30 days prior to the application's receipt ...."). Regardless of the reason why Petitioner delayed in submitting a Medicare enrollment application, the simple fact is that it did not submit this application until April 23, 2018; therefore, the effective date of Petitioner's Medicare enrollment is April 23, 2018, with retrospective billing privileges beginning March 24,

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2018. Pursuant to 42 C.F.R. §§ 424.520(d) and 424.521(a)(1), Petitioner's billing privileges began no earlier than March 24, 2018.

To the extent that Petitioner's request for an earlier effective date 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 it 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 ....").

Palmetto had a legitimate basis to assign an April 23, 2018 effective date for Petitioner's Medicare enrollment and billing privileges, with retrospective billing privileges beginning March 24, 2018. See 42 C.F.R. §§ 424.520(d), 424.521(a)(1).

V. Conclusion

For the foregoing reasons, I uphold the April 23, 2018 effective date of Petitioner's Medicare enrollment and billing privileges, with retrospective billing allowed beginning March 24, 2018.

1. Palmetto did not provide an explanation for its determination that March 24, 2018, was the effective date of the application. It is apparent that Palmetto afforded Petitioner 30 days of retrospective billing privileges prior to the April 23, 2018 submission date of the application. In more precise terms, the actual effective date of the application is April 23, 2018, and the retrospective billing privileges are effective March 24, 2018. See 42 C.F.R. §§ 424.520(d), 424.521(a)(1).
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2. I reference the exhibit submitted by Petitioner, as CMS did not submit a copy of the request for reconsideration as a proposed exhibit.
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3. This case was reassigned to me on March 8, 2019.
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4. Because a hearing is unnecessary, I need not address whether summary judgment is appropriate.
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5. Findings of fact and conclusions of law are in italics and bold font.
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6. Petitioner has submitted evidence indicating that the IRS issued corrected documentation in response to March 3, 2018 correspondence from Petitioner. P. Ex. 3 at 1. March 3, 2018, is more than 11 weeks following the date of the IRS's initial notice of Petitioner's EIN. P. Ex. 3 at 1; see P. Ex. 2 at 1. Even assuming, for the sake of this discussion, that Petitioner took immediate action to obtain correct EIN documentation, this would have no bearing on my analysis because the effective date of Petitioner's billing privileges is controlled by the date it submitted its enrollment application that was processed to approval.
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