Louis J. Novak, M.D., DAB CR5693 (2020)

DECISION

Petitioner, Louis J. Novak, M.D., is an Ohio physician, specializing in radiation oncology, who participates in the Medicare program as a supplier of services.  His Medicare billing privileges were deactivated, and he subsequently reenrolled in the program and applied to assign his benefits to a medical group with which he was affiliated.  There were problems with his applications, however, and the Medicare contractor deactivated his assignment of benefits.  He subsequently submitted a new application to reassign his benefits.  The Centers for Medicare & Medicaid Services (CMS) granted the application, with a retrospective billing date of November 21, 2017 (and, by inference, an effective enrollment date of December 21, 2017).  Because of the deactivations, Petitioner’s Medicare coverage lapsed for a significant period of time.

Petitioner asks me to backdate his effective date – to May 1, 2017 – so that he will not experience a coverage lapse.  My authority, however, is too limited to grant Petitioner the relief he seeks. 

Because Petitioner filed his subsequently-approved enrollment application on December 21, 2017, I find that December 21 is the correct effective date for his enrollment.

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Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 (2019); Urology Grp. of NJ, LLC, DAB No. 2860 (2018); Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017), aff’d sub nom. Goffney v. Azar, No. CV 17-8032 MRW (C.D. Cal. Sept. 25, 2019).

Background

In a notice letter dated January 9, 2018, the Medicare contractor, CGS Administrators, LLC, advised Petitioner that it approved his reassignment of Medicare benefits, with an effective date of November 21, 2017.  CMS Ex. 10.  In fact, as explained below, the contractor was granting Petitioner a billing date of November 21, 2017; the effective date for the reassignment was December 21, 2017 (see discussion below).

Petitioner requested reconsideration, asking to backdate the effective date to May 1, 2017.  Petitioner complained that he had not received a June 2, 2017 development letter and other correspondence.  For that reason, he had not provided the requested development, which resulted in his deactivation.  CMS Ex. 8 at 2; see CMS Ex. 8 at 7.

In a reconsidered determination, dated February 6, 2018, a contractor hearing officer affirmed the effective date, although she also inaccurately characterized the billing date (November 21, 2017) as the effective date (which is December 21, 2017).  DAB Dkt. 1a.  Petitioner appealed.

CMS moves for summary judgment.  However, because neither party proposes any witnesses, an in-person hearing would serve no purpose.  See Acknowledgment and Pre‑hearing Order at 3, 5 (¶¶ 4(c)(iv), 8) (April 16, 2018).  I may therefore decide this case based on the written record, without considering whether the standards for summary judgment are satisfied.

CMS submits its motion and brief (CMS Br.) with 11 exhibits (CMS Exs. 1-11).  Petitioner submits a letter brief in response (P. Br.).  In the absence of any objections, I admit into evidence CMS Exs. 1-11.  See Acknowledgment and Pre-hearing Order at 5 (¶ 7).

Discussion

On December 21, 2017, Petitioner filed his subsequently-approved enrollment application to reassign his billing privileges, and the effective date of the reassignment can be no earlier than that date.  42 C.F.R. § 424.520(d).1

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Enrollment and assignment of benefits.  Petitioner Novak participates in the Medicare program as a “supplier” of services.  Social Security Act § 1861(d); 42 C.F.R. § 498.2.  To receive Medicare payments for the services furnished to program beneficiaries, a prospective supplier must enroll in the program.  42 C.F.R. § 424.505.  “Enrollment” is the process by which CMS and its contractors:  1) identify the prospective supplier; 2) validate the supplier’s eligibility to provide items or services to Medicare beneficiaries; 3) identify and confirm a supplier’s owners and practice location; and 4) grant the supplier Medicare billing privileges.  42 C.F.R. § 424.502.  

To enroll, a prospective supplier must complete and submit an enrollment application.  42 C.F.R. §§ 424.510(d)(1), 424.515(a).  An enrollment application is either a CMS-approved paper application or an electronic process approved by the Office of Management and Budget.  42 C.F.R. § 424.502.2   When CMS determines that a prospective supplier meets the applicable enrollment requirements, it grants Medicare billing privileges, which means that the supplier can submit claims and receive payments from Medicare for covered services provided to program beneficiaries.  For a physician, the effective date for billing privileges “is the later of the date of filing” a subsequently-approved enrollment application or “[t]he date that the supplier first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d) (emphasis added).

Although the Medicare statute and regulations generally preclude a supplier from reassigning his Medicare claims, there are exceptions, such as when payment is made to an employer or pursuant to a contractual arrangement.  Social Security Act § 1842(b)(6); 42 C.F.R. § 424.80(a)-(b).  To reassign his billing privileges, the supplier must submit an additional enrollment application.  As with any other enrollment application, the effective date of a reassignment is governed by section 424.520(d).  

Retrospective billing.  If a physician meets all program requirements, CMS may allow it to bill retrospectively for up to 30 days prior to the effective date “if circumstances precluded enrollment in advance of providing services to Medicare beneficiaries.”  42 C.F.R. § 424.521(a)(1).

Some Medicare contractors have created confusion because they are inclined to conflate the effective date with the retrospective billing date, as the contractor did in this case.  CMS Ex. 10; DAB Dkt. 1a.  The distinction is important; I have the authority to review “[t]he effective date of . . . supplier approval.”  42 C.F.R. § 498.3(b)(15).  But nothing in the regulations gives me the authority to review CMS’s determinations regarding retrospective billing.

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Here, on December 21, 2017, the Medicare contractor received Petitioner’s enrollment application (CMS 855R), which the contractor subsequently approved.  CMS Ex. 9 at 1.  Thus, pursuant to section 424.520(d), the date Petitioner filed his subsequently-approved enrollment application – December 21, 2017 – is the correct effective date of enrollment.  Sokoloff, DAB No. 2972; Urology Grp., DAB No. 2860 at 7-9; Goffney, DAB No. 2763 at 7.

The issues that are not before me:  the earlier deactivations and coverage lapse.  As the discussion above shows, the case before me is straight-forward.  Petitioner, however, complains about an earlier process that led to the deactivation of his enrollment.  He claims that he did not receive the contractor’s development letters, so he could not respond, which led to his deactivation and the significant lapse in coverage.  I have no authority to review the deactivation nor to grant him relief based on his equitable claims.  Sokoloff, DAB No. 2972 at 6; Ark. Health Grp., DAB No. 2929 at 7-9 (2019) and cases cited therein.  Nor may I grant Petitioner an earlier effective date based on equitable or policy arguments.  Sokoloff, DAB No. 2972 at 9.

Conclusion

Because Petitioner filed his subsequently-approved reenrollment application on December 21, 2017, CMS properly granted his Medicare reenrollment effective that date. 

1. I make this one finding of fact/conclusion of law.
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2.  CMS’s electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).
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