Yakup Akyol, M.D., DAB CR5547 (2020)

DECISION

National Government Services, Inc. (NGS), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), determined that the effective date of Medicare billing privileges for Yakup Akyol, M.D. (Petitioner) was November 1, 2017.  NGS also determined that Petitioner could submit claims for payment for services performed or delivered beginning October 2, 2017.  NGS affirmed the effective date on reconsideration, and Petitioner appealed.  Because November 1, 2017, is the earliest date NGS received an application from Petitioner that it was able to process to approval, NGS correctly determined that Petitioner’s Medicare billing privileges became effective November 1, 2017.  Therefore, I affirm NGS’s effective date determination.

I. Background

Petitioner is a medical doctor licensed to practice medicine in the State of New York.  CMS Exhibit (Ex.) 2 at 7.  In May 2017, Petitioner submitted applications, consisting of Forms CMS-855I and CMS-855R, to enroll in Medicare and reassign his right to Medicare reimbursement to Zwanger-Pesiri Radiology, LLP (ZPR).  CMS Exs. 2, 3; see also CMS Ex. 1 at 3.  NGS received the applications on May 24, 2017.  CMS Ex. 2 at 1;

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CMS Ex. 3 at 1; see also CMS Ex. 1 at 3.  Petitioner’s applications requested an effective date of July 1, 2017.  See CMS Ex. 1 at 3.

In a June 6, 2017 letter, NGS acknowledged receipt of Petitioner’s enrollment and reassignment applications, but requested additional information needed to complete processing the applications.  CMS Ex. 4 at 1.  NGS’s June 6 letter warned that “failure to respond to this request within 30 days . . . may result in the rejection or denial of your application.”  Id. (emphasis omitted).  Because Petitioner failed to timely respond to NGS’s request, NGS rejected Petitioner’s enrollment and reassignment applications by letter dated July 13, 2017.  CMS Ex. 5. 

Following multiple telephone calls between Petitioner’s credentialing representatives and NGS (CMS Ex. 1 at 3),1 Petitioner submitted a new Medicare application consisting only of Form CMS‑855R.  CMS Ex. 6.  NGS received the application on August 11, 2017.  Id. at 1.  Petitioner’s application requested an effective date of July 1, 2017.  Id. at 5. 

In a letter issued September 14, 2017, NGS acknowledged receipt of Petitioner’s August 11, 2017 reassignment application, but again requested additional information needed to complete processing the application.  CMS Ex. 7.  Specifically, NGS requested that Petitioner complete the missing elements of his Form CMS-855R and submit a Form CMS‑855I.  Id. at 3-4.  NGS’s development notice again warned that “failure to respond to this request within 30 days . . . may result in the rejection or denial of your application.”  Id. at 1 (emphasis omitted).  Because Petitioner failed to timely respond to NGS’s request, NGS again rejected Petitioner’s enrollment application by letter dated October 19, 2017.  CMS Ex. 8.

Petitioner again submitted Forms CMS‑855I (CMS Ex. 9) and CMS-855R (CMS Ex. 10) to enroll in Medicare and reassign his right to Medicare reimbursement to ZPR.  NGS received the applications on November 1, 2017.  CMS Ex. 9 at 1; CMS Ex. 10 at 1.  By letter dated November 20, 2017, NGS approved Petitioner’s Medicare enrollment application effective November 1, 2017.2   CMS Ex. 11.  In the approval letter, NGS established that Petitioner could not submit claims for payment for services performed or delivered earlier than October 2, 2017.  Id. at 1.

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Suzanne Linzer, a credentialing specialist with ZPR’s credentialing firm, Newport Credentialing Solutions (Newport),3 timely requested reconsideration on Petitioner’s behalf to challenge NGS’s effective date determination.  CMS Ex. 12.  In the reconsideration request, Petitioner requested an effective date of August 1, 2017.  Id. at 3.

By letter dated January 8, 2018, NGS issued an unfavorable reconsidered determination affirming November 1, 2017 as the effective date of Petitioner’s Medicare enrollment and reassignment to ZPR, with retrospective billing privileges effective October 2, 2017.  CMS Ex. 1 at 4.  In a letter dated January 30, 2018, Kellien Carey, Director of Client Operations for Newport, timely requested a hearing before an administrative law judge on Petitioner’s behalf to challenge NGS’s unfavorable reconsidered determination.  I was designated to hear and decide this case.

On February 6, 2018, I issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order).  CMS filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment and Pre-Hearing Brief (CMS Br.) and thirteen proposed exhibits (CMS Exs. 1‑13).  Petitioner filed a response brief (P. Br.).  Petitioner did not offer any exhibits and did not object to the exhibits offered by CMS.  Therefore, in the absence of objection, I admit CMS Exs. 1-13.  

Neither CMS nor Petitioner offered the written direct testimony of any witness as part of the 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.  Consequently, an in-person hearing is not required, and I issue this decision based on the written record, without regard to whether the standards for summary judgment are met.  Pre‑Hearing Order ¶¶ 8-11; CRDP § 19(d).  I therefore deny CMS’s motion for summary judgment as moot.  In the following section, I explain why I deny CMS’s motion to dismiss and instead issue a decision on the merits of this case.

II. CMS’s Motion to Dismiss

CMS moved to dismiss Petitioner’s hearing request, arguing that:

[T]he hearing request should be dismissed pursuant to 42 C.F.R. § 498.70 because it was filed by a party who was not authorized to represent Petitioner, and because the hearing request fails to identify the specific findings of fact and conclusions of law that Petitioner seeks to appeal, as required by 42 C.F.R. § 498.40(b).

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CMS Br. at 1.  Dismissal of a hearing request is appropriate when “[t]he party requesting a hearing is not a proper party or does not otherwise have a right to a hearing.”  42 C.F.R. § 498.70(b).

As CMS points out, Petitioner’s hearing request failed to demonstrate that Ms. Carey was Petitioner’s authorized representative.  CMS Br. at 1; see also Pre-Hearing Order ¶ 2.  As an employee of Newport, Ms. Carey is not directly affiliated with Petitioner or ZPR.4   Pre-Hearing Order ¶ 2.  However, in response to my Order to File Appointment of Representative and to Show Cause, Petitioner clarified that he “authorized Kellien Carey to file the hearing request in this case on his behalf.”  Departmental Appeals Board (DAB) Electronic Filing System (E‑File), Docket (Dkt.) Entry 10.  Based on this statement, I accept that Ms. Carey was Petitioner’s authorized representative at the time she filed the hearing request.  I therefore find that dismissal of this case pursuant to 42 C.F.R. § 498.70(b) is not warranted.

CMS also argues that Petitioner’s hearing request “fails to identify the specific findings of fact and conclusions of law that [he] seeks to appeal.”  CMS Br. at 1.  Petitioner’s hearing request states that he is contesting his “provider enrollment date” and that he seeks authorization to “process [his] pending outstanding claims.”  DAB E‑File, Dkt. Entry 1.  It is apparent from these statements that Petitioner is seeking to establish an effective date of Medicare enrollment and reassignment to ZPR earlier than November 1, 2017 (with retrospective billing allowed from October 2, 2017), to coincide with when he began seeing ZPR patients.  In any event, to whatever extent Petitioner’s hearing request failed to elaborate fully on the findings of fact and conclusions of law with which he disagreed, CMS was able to understand Petitioner’s position sufficiently to articulate that NGS properly determined the effective date of enrollment and reassignment in this case.  See CMS Br. at 10-14.  Therefore, CMS was not deprived of notice as to the issues in dispute.

For the reasons stated, I deny CMS’s Motion to Dismiss and proceed to consider the merits of this case.

III. Issue

Whether NGS, acting on behalf of CMS, properly established that Petitioner’s effective date of Medicare enrollment and reassignment of billing privileges was November 1, 2017.

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IV. 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 § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

V. Discussion

A. Applicable Legal Authority

The Social Security Act (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 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. 

The Act and regulations limit who may receive Medicare payments due to a supplier of services and also provide for reassignment of the right to receive those payments.  Act §§ 1815(c) and 1842(b)(6) (42 U.S.C. §§ 1395g(c) and 1395u(b)(6)); 42 C.F.R. § 424.70(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)(3) (42 U.S.C. § 1395u(b)(3)); 42 C.F.R. § 424.80(b)(1)-(2).

For a supplier, such as a physician, to reassign benefits to an eligible entity, a supplier must complete and submit an application using Form CMS‑855R.  Medicare Program Integrity Manual (MPIM), CMS Pub. 100‑08, Ch. 15, § 15.5.20.A.  The MPIM provides that reassignment of benefits may only occur between enrolled suppliers.  Id.  Further, the MPIM instructs contractors that when a Form CMS‑855R is submitted as a “stand alone” form (i.e. where an enrolled physician joins a new group practice), “the effective date of

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the enrollment and the reassignment shall be consistent with the 30‑day rule.”  MPIM § 15.5.20.E.3.5   Under the “30‑day rule,” CMS contractors calculate the effective date based on “the later of the date of filing or the date the reassignor first began furnishing services at the new location.”  Id.; see also 42 C.F.R. § 424.520(d).  Suppliers have the right to appeal an initial determination regarding the effective date.  42 C.F.R. § 498.5(l)(1); see also 42 C.F.R. § 498.22(a).

B. Findings of Fact and Conclusions of Law6

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

2. The effective date for Petitioner’s Medicare billing privileges is November 1, 2017, with retrospective billing privileges effective October 2, 2017.

The effective date for Medicare billing privileges for physicians, non-physician practitioners, and physician or non-physician practitioner organizations is the later of the “date of filing” or 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 November 1, 2017.  CMS Ex. 9 at 1; CMS Ex. 10 at 1.  This was the first application that NGS was able to process to completion.  NGS approved the application with an effective date of November 1, 2017, and granted Petitioner 30 days of retrospective billing.  CMS Ex. 11 at 1.  Accordingly, as required by regulation, the effective date of Petitioner’s Medicare enrollment and reassignment is November 1, 2017, with retrospective billing privileges effective October 2, 2017.

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In support of his position that I should grant him an earlier effective date of enrollment, Petitioner states the following:

We have acknowledged we are aware it is CMS policy to grant a retroactive effective date of 30 days past the date of submission.  We do not dispute the CMS policy, we hope in consideration of the below background statement [42 C.F.R. § 424.520(d)] provided on the January 8, 2018 rejection would be taken into consideration . . . 

P. Br. at 2.7   Petitioner further contends that calls with NGS “had contributed to the confusion,” and Petitioner tried to comply with NGS’s requests.  P. Br. at 3.  As a result, Petitioner asks me to consider these factors when reviewing NGS’s effective date determination.  Id.  Petitioner does not explain exactly how the circumstances he describes support a conclusion that he is entitled to an earlier effective date, however.

I infer that Petitioner may be arguing that NGS should not have rejected the applications he submitted prior to November 1, 2017 because NGS’s instructions regarding how to complete the pending applications were unclear and he nevertheless made every effort to provide the requested information.  Petitioner also may be arguing that I should grant him an earlier effective date as a matter of fairness, because NGS did not provide him with clear instructions.  In the following sections of this decision, I explain why these arguments are not a basis to change the effective date of Petitioner’s enrollment and reassignment of benefits.

3. I have no authority to review NGS’s decision to reject Petitioner’s May and August 2017 enrollment applications.

The regulations define a rejected application as follows:

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.  Petitioner does not dispute that NGS rejected the applications that Petitioner submitted on May 24, 2017, and August 11, 2017.  CMS Exs. 5, 8; P. Br. at 3.

Petitioner first attempted to enroll and reassign his billing privileges by submitting Forms CMS-855I and CMS-855R, which NGS received on May 24, 2017.  CMS Exs. 2, 3; see

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also CMS Ex. 12 at 3.  NGS requested additional information from Petitioner but ultimately rejected the applications after Petitioner failed to respond timely.  CMS Exs. 4, 5.  Petitioner then submitted a second Form CMS-855R which NGS received on August 11, 2017.  CMS Ex. 6; see also CMS Ex. 12 at 3.  NGS again requested additional information from Petitioner, but again NGS rejected this application after Petitioner failed to respond timely.  CMS Exs. 7, 8.

Petitioner represents that it is ZPR’s practice to “validate information” with NGS, and the advice obtained was “conflicting.”  P. Br. at 3.  To the extent Petitioner is arguing that, had NGS provided clear instructions, he would have provided the required information timely and NGS would not have rejected his applications, this amounts to an argument that NGS should not have rejected his applications.  However, an administrative law judge may not review a contractor’s decision to reject an enrollment application.  42 C.F.R. § 424.525(d); James Shepard, M.D., DAB No. 2793 at 3 (2017).  Therefore, even if NGS should not have rejected either Petitioner’s May 24, 2017 or August 11, 2017 enrollment applications, this would not be a basis to grant him an earlier effective date. 

As the appellate panel 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 his application ‒ a determination for which there are no administrative appeal rights.  Id.

4. I do not have authority to grant equitable relief.

Petitioner’s argument that I should grant him an earlier effective date because he attempted to timely submit his application and tried to comply with NGS’s requirements (P. Br. at 3), can also be read as an appeal for equitable relief.  Petitioner contends that the “effort was made to retrieve the corrected information in time” and NGS gave “conflicting [advice] . . . [that] contributed to the confusion.”  P. Br. at 3.  Despite acknowledging Medicare’s rules and regulations, Petitioner requests that I consider his efforts to comply and NGS’s purportedly confusing information when reviewing the effective date granted by NGS.  Id.  These contentions suggest that Petitioner may be arguing that he is entitled to an earlier effective date based on the doctrine of equitable estoppel ‒ i.e. he relied to his detriment on false or misleading information provided by NGS.

However, as appellate panels of the DAB have recognized, equitable estoppel will not lie against a government entity absent some type of affirmative misconduct.  See, e.g.,

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Richard Weinberger, M.D. and Barbara Vizy, M.D., DAB No. 2823 at 19 (2017) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 419-21 (1990)).  As the appellate panel in Weinberger & Vizy emphasized, “affirmative misconduct appears to require something more than failing to provide accurate information or negligently giving wrong advice.”  DAB No. 2823 at 19(internal quotation marks and citations omitted).  Petitioner’s characterization of his representatives’ interactions with NGS might support an inference that NGS employees negligently gave wrong advice, but not that they committed affirmative misconduct.  Therefore, I find no basis to overturn NGS’s effective date determination based on equitable estoppel.

Finally, to the extent Petitioner’s argument is that I should grant him an earlier effective date based on principles of fairness, such general appeals to equity are not a basis to overturn NGS’s determination in this case.  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).

VI. Conclusion

I affirm NGS’s determination that the effective date of Petitioner’s Medicare billing privileges is November 1, 2017, with retrospective billing privileges beginning October 2, 2017.

1. In its reconsidered determination, NGS noted that many of the telephone calls were not with Petitioner’s “listed contact person.”  CMS Ex. 1 at 3.
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2. NGS erroneously characterized Petitioner’s effective date of enrollment and reassignment of billing privileges as October 2, 2017.  CMS Ex. 11 at 1.  In fact, October 2, 2017 is Petitioner’s retrospective billing date.  NGS clarified in its reconsideration decision that Petitioner’s effective date of billing privileges was November 1, 2017.  CMS Ex. 1 at 4.
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3. Ms. Linzer is one of several Newport Credentialing employees listed as contact persons on Petitioner’s November 1, 2017 Form CMS-855I enrollment application.  See CMS Ex. 9 at 3
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4. Nor did Petitioner list Ms. Carey as an authorized official or a contact person on either the Form CMS-855I or the Form CMS-855R he submitted to NGS in November 2017.  CMS Exs. 9, 10.
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5. CMS added section 15.5.20.E.3 to the MPIM by transmittal R676PI, which was effective December 19, 2016.  See https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/2016-Transmittals-Items/R676PI.html (last visited February 21, 2020).  Thus, per CMS policy, the “30-day rule” was applicable in 2017, when Petitioner submitted his applications.  In light of the Supreme Court’s decision in Azar v. Allina Health Services, 139 S. Ct. 1804 (2019), it is unclear what effect, if any, I should give to guidance promulgated via the MPIM.  Nevertheless, in my view, the effective date regulation (42 C.F.R. § 424.520(d)) is clear and the MPIM guidance is consistent with the regulation.
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6. My findings of fact and conclusions of law appear as numbered headings in bold italic type.
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7. Petitioner did not separately paginate his brief.  I refer to the PDF page numbers in the document uploaded in DAB E-File.
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