Go Medical Corporation, PC, DAB CR5461 (2019)

DECISION

The effective date of Medicare enrollment and billing privileges of Petitioner, Go Medical Corporation, PC, is March 14, 2018, with retrospective billing allowed beginning February 12, 2018.

I. Background and Procedural History

Petitioner, a clinical/group practice, submitted enrollment applications that Palmetto GBA (Palmetto), a Medicare administrative contractor (MAC), received on March 14, 2018. Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 19, 23-24. Palmetto informed Petitioner, in a letter dated June 14, 2018, that it had approved Petitioner's initial Medicare enrollment application, with an effective date of February 12, 2018.1 CMS Ex. 1 at 40.

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Petitioner submitted a request for reconsideration dated June 14, 2018. CMS Ex. 1 at 44-45. Petitioner explained the following in support of its reconsideration request:

On December 31, 2017, the South DeKalb Medical Group ...was dissolved.

Dr. Rommel Go, a partner in the South DeKalb group incorporated as Go Medical Corporation .... Dr. Go, along with 9 of the 13 providers formerly at South DeKalb started seeing patients on January 2, 2018. The transition was seamless, and the 10 providers which had formerly been employed at South DeKalb Medical Group continued providing medical services to their patients that had been in their care at the former location.

We kindly ask for reconsideration of our approved effective date with Medicare. We ask that you retro it from February 12, 2018 back to January 2, 2018 since we continued to care for the Medicare population without any break in service.

CMS Ex. 1 at 45.

Palmetto issued a reconsidered determination on October 23, 2018, in which it explained 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." CMS Ex. 1 at 1.

Petitioner submitted a request for an administrative law judge (ALJ) hearing that was received on November 27, 2018. ALJ Keith W. Sickendick issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) on December 10, 2018, at which time he directed the parties to file their respective pre-hearing exchanges.2 CMS filed a motion for summary judgment (CMS Br.), along with two proposed exhibits (CMS Exs. 1-2). Petitioner filed a response to CMS's motion for summary judgment (P. Br.) that included an appendix.  In the absence of any objections, I admit CMS Exs. 1-2 into the evidentiary record.

A hearing for the purpose of cross-examination is unnecessary because neither party has identified any proposed witnesses who would testify at an oral hearing. Pre-Hearing

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Order, § III.D. I consider the record in this case to be closed, and the matter is ready for a decision on the merits.3

II. Issue

Whether the effective date of Petitioner's Medicare enrollment and billing privileges is March 14, 2018, with retrospective billing beginning February 12, 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 Analysis4

Pursuant to 42 C.F.R. §§ 424.520(d) and 424.521(a)(1), Petitioner's Medicare enrollment and billing privileges were effective March 14, 2018, which is the date Palmetto received the enrollment application that it processed to approval, with retrospective billing privileges beginning February 12, 2018.

As a clinic/group practice, Petitioner is a "supplier" for purposes of the Medicare program. See CMS Ex. 1 at 23; 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

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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.'" Id. at 2-3 (citing 42 C.F.R. § 424.520(d)).

The 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 began seeing patients in January 2018, it did not submit an enrollment application to Palmetto until March 14, 2018.  P. Br. at 1-2; CMS Ex. 1 at 19, 23-24. Therefore, the earliest possible effective date for Petitioner's enrollment and billing privileges is the later date of March 14, 2018, with retrospective billing beginning on February 12, 2018. 42 C.F.R. §§ 424.520(d), 424.521(a)(1). Accordingly, I conclude that Petitioner's billing privileges began no earlier than February 12, 2018.

Petitioner does not contend that it submitted an enrollment application prior to March 14, 2018. Rather, Petitioner argues, for the first time,5 that an outside credentialing service is to blame, stating:

3. [T]he medical providers who would go on to form Go Medical hired a third-party medical credentialing service ... to expedite the credentialing for the new Go Medical clinic.

4.  Go Medical relied upon [the credentialing company] to expedite their credentialing with Medicare and others (Aetna, Blue Cross Blue Shield, Cigna, Medicaid, etc.).

5. Upon information and belief, [the credentialing company] did not file the requisite credentialing papers or forms on behalf of Go Medical with

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CMS until March 14, 2018. As a proximate result of [the credentialing company's] actions and or omissions, Go Medical was damaged.

6. Go Medical was not aware of any relevant time that [the credentialing company] had not timely submitted the information to CMS.

7. [The credentialing company] admitted to Go Medical that [it] "dropped the ball" with respect to credentialing, and [the credentialing company] further admitted that [it] did not timely submit Go Medical's application to CMS in an expedited fashion.

P. Br. at 2. In support, Petitioner appended "Exhibit A" to its brief, which is March 28, 2018 email correspondence from the president and chief executive officer of its credentialing company acknowledging that "there was a definite lag in submission to Medicare." P. Br. at 4.6 Even accepting as true, for purposes of this discussion, that the credentialing company delayed in submitting Petitioner's enrollment applications, there is no legal basis to allow billing privileges earlier than February 12, 2018. The simple fact is that Palmetto did not receive Petitioner's application to enroll as a Medicare supplier until March 14, 2018; therefore, the pertinent regulation, 42 C.F.R. § 424.520(d), mandates that the effective date of its enrollment is March 14, 2018. Retrospective billing privileges are permitted no earlier than February 12, 2018, pursuant to 42 C.F.R. § 424.521(a)(1), which allows for retrospective billing privileges no more than 30 days prior to the effective date of enrollment.

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 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 a March 14, 2018 effective date for Petitioner's Medicare enrollment and billing privileges, with retrospective billing privileges beginning February 12, 2018. 42 C.F.R. §§ 424.520(d), 424.521(a)(1).

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V. Conclusion

For the foregoing reasons, I uphold the March 14, 2018 effective date of Petitioner's Medicare enrollment and billing privileges, with retrospective billing beginning February 12, 2018.

1. Palmetto did not provide an explanation for its determination that February 12, 2018, was the effective date of the application. It is apparent that Palmetto afforded Petitioner 30 days of retrospective billing privileges prior to the March 14, 2018 submission date of the application. In more precise terms, the actual effective date of enrollment is March 14, 2018, and the retrospective billing privileges are effective February 12, 2018. See 42 C.F.R. §§ 424.520(d), 424.521(a)(1).
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2. This case was reassigned to me on March 8, 2019.
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3. Because the parties have not identified any witnesses and a hearing is unnecessary, I need not address whether summary judgment is appropriate.
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4. Findings of fact and conclusions of law are in italics and bold font.
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5. Petitioner previously argued for the first time in its request for hearing that "Palmetto had not been awarded Jurisdiction J ... Medicare Administrative Contractor until February 26, 2018 for CMS, therefore Palmetto was not an entity when Go Medical Group became established on 01/01/18." Petitioner further argued that "[i]t is our hopes that we are awarded an effective date of 01/01/18 since the normal process outlined in the Effective date reason[: ]42 [C.F.R. § ]424.521(a)(1) was not available to new [Medicare supplier] applicants." CMS responded that "Cahaba GBA was the MAC for Alabama in January of 2018, and was capable of receiving a paper enrollment application." CMS Br. at 4. Petitioner abandoned this argument in its brief.
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6. CMS does not object to Petitioner's inclusion of this email correspondence with its brief. But see 42 C.F.R. § 498.56(e)(2)(ii) (requiring a showing of good cause to present new evidence).
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