Casey Wallner, RD, LD, DAB CR5768 (2020)

DECISION

Noridian Healthcare Solutions (NHS), an administrative contractor for Respondent, the Centers for Medicare & Medicaid Services (CMS), granted Medicare billing privileges to Casey Wallner, RD, LD (Petitioner), effective December 18, 2017, with retrospective billing permitted from November 18, 2017.  Petitioner requested a hearing before an administrative law judge (ALJ) to dispute this effective date.  As explained herein, NHS correctly determined that Petitioner's individual Medicare enrollment and associated billing privileges became effective December 18, 2017.  I affirm CMS's effective date determination.

I. Background

NHS received an application for individual enrollment from Petitioner on December 18, 2017.  CMS Exhibit (Ex.) 1 at 29.  After requesting and receiving revisions from Petitioner, NHS approved her application and determined her effective date of enrollment to be December 18, 2017, with 30 days of retrospective billing permitted from November

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18, 2017.  CMS Ex. 1 at 10.1   Petitioner asked NHS to reconsider its effective date determination.  CMS Ex. 1 at 54.  Upon reconsideration, NHS affirmed its effective date determination.  Id. at 56.

On June 11, 2018, the Civil Remedies Division of the Departmental Appeals Board received Petitioner's request for a hearing, and I was designated to hear and decide this case.  On June 15, 2018, I issued an Acknowledgment and Pre‑Hearing Order (Pre-Hearing Order) that required each party to file a pre-hearing exchange and supporting documents.  Pre-Hearing Order ¶ 4.  CMS subsequently filed a Motion for Summary Judgment and Pre-Hearing Brief (CMS Br.), along with two exhibits (CMS Exs. 1-2).  Petitioner filed her pre-hearing exchange (P. Br.) on August 24, 2018.

II. Decision on the Written Record and Admission of Exhibits

CMS offered two proposed exhibits.  Petitioner neither offered exhibits nor objected to those offered by CMS.  I admit CMS Exs. 1-2 into evidence.  CMS identified one witness and offered his direct written testimony.  Petitioner offered no witnesses and did not request to cross-examine CMS's witness.  Consequently, I will not hold an in-person hearing in this matter, and I issue this decision based on the written record.  Pre-Hearing Order ¶¶ 8-10; Civ. Remedies Div. P. § 19(d).  CMS's motion for summary judgment is denied as moot.

III. Issue

The issue in this case is whether NHS, acting on behalf of CMS, properly established December 18, 2017 as the effective date for Petitioner's Medicare billing privileges.

IV. Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2).

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V. Findings of Fact, Conclusions of Law, and Analysis

A.  Applicable Law

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 "physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services" like Petitioner is a "supplier" under the Medicare provisions of the Act.  42 U.S.C. §§ 1395x(d), 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 "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 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).  Upon enrollment, CMS establishes an effective date for billing privileges pursuant to 42 C.F.R. § 424.520(d), and may permit a retrospective billing date that is 30 or 90 days prior to the effective date under 42 C.F.R. § 424.521(a)(1)-(2).

B.  Analysis

1. NHS received Petitioner's Medicare enrollment application on December 18, 2017 and subsequently processed that application to approval, making that date the effective date of her enrollment.

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).  The regulations allow suppliers to "retrospectively bill" Medicare, meaning CMS permits a supplier to bill Medicare for services occurring up to thirty days before the effective date of enrollment, if certain circumstances apply.  42 C.F.R § 424.521(a)(1).

Petitioner does not claim NHS received a Medicare enrollment application that it subsequently approved from her earlier than December 18, 2017.  The only enrollment

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application identified in the record indicates NHS received an enrollment application on December 18, 2017.2   CMS Ex. 1 at 29.  NHS similarly identified December 18, 2017 as the date it received an enrollment application from Petitioner that it ultimately approved in its reconsidered determination.  Id. at 10.  The governing regulations require me to find the effective date of Petitioner's Medicare enrollment to be December 18, 2017.  42 C.F.R. §§ 424.520(d), 424.521(a)(1).

2. I have no authority to consider Petitioner's equitable arguments for an earlier effective date.

Petitioner argues that she was not "informed that [she] needed to "release" the PTAN number from the group code," and she was unaware that "[she] needed a new [NPI and PTAN] as an individual proprietor."  P. Br. at 4.  She contends Cascade should have informed CMS when she left the practice in 2015.  Id. at 5.  Petitioner also complains that an NHS employee advised her to file an individual enrollment application by paper without advising her of the consequences arising from delayed submission or use of that method of submission.  Id. at 4.

Petitioner may reasonably believe her prior employer should have informed CMS of her departure, though I observe the regulations require a non-physician practitioner, not his or her employer, to report a change of practice location to CMS within 30 days.  42 C.F.R. § 424.516(d)(1)(iii).  Petitioner may also correctly assert that some needless delay in her enrollment resulted from NHS advising her to submit a paper enrollment application and failing to advise her time was of the essence to minimize her gap in billing privileges.  But in either case, I have no authority to grant Petitioner equitable relief.  See, e.g., US Ultrasound, DAB No. 2302 at 8 (2010) ("Neither the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements."); Pepper Hill Nursing & Rehab. Ctr., LLC, DAB No. 2395 at 11 (2011) (holding that the ALJ and Board were not authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements).

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My jurisdiction is instead limited to review of CMS's determination of the effective date of Petitioner's enrollment application, which is governed by 42 C.F.R. § 424.520(d).  As I have explained, pursuant to that regulation, NHS properly determined December 18, 2017 was Petitioner's effective date of enrollment, as that is the date NHS received an application from her that it was able to subsequently process to approval.

VI. Conclusion

I affirm CMS's determination that Petitioner's effective date for Medicare billing privileges is December 18, 2017, with retrospective billing permitted from November 18, 2017.

1. NHS's initial and reconsidered determinations mistakenly identify November 18, 2017 as the "effective date" of Petitioner's reassigned billing privileges.  CMS Ex. 1 at 10, 56.  CMS counsel similarly misidentifies November 18, 2017 as the "effective date" before me.  CMS Br. at 2.  But the regulations distinguish between the effective date and the date from which retrospective billing is permitted.  See 42 C.F.R. §§ 424.520(d), 424.521(a)(1).  I infer that NHS applied the maximum 30 days of retrospective billing permitted in this situation, meaning NHS established December 18, 2017 as the actual effective date within the meaning of the regulations.  Consistent with those regulations, I use the term "effective date" in this decision to refer to the date Noridian received an application from Petitioner it eventually approved, not the earlier date from which it authorized retrospective billing.
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2. There is an "initial" enrollment application "finalized" by NHS on December 6, 2017.  CMS Ex. 1 at 7.  However, this appears to refer to the conversion of Petitioner's NPI, 1104246024, from its association with her prior employer, a group biller, to her own individual billing status with a new individual PTAN.  Id. at 13.  That same day, Petitioner had sought to enroll, and been advised her application could not be processed because her existing NPI was associated with a group enrollee.  Id. at 6.  In short, the "finalized" application referenced by NHS on December 6, 2017 was not an enrollment application, but appears to have been an application to convert Petitioner's NPI and obtain a new PTAN in order for her to be able to enroll as an individual provider.  Id. at 10.  That these are two separate processes is confirmed by the fact NPI subsequently provided two different notices to Petitioner – one issued on January 25, 2018, establishing her effective date of enrollment based on her December 18, 2017 application, and one issued on January 03, 2018, assigning her a new PTAN and re-designating her NPI to belong to her as an individual biller.  Id. at 10-13.  This point is entirely unaddressed in both NHS's reconsidered determination and CMS's briefing before me.  Bureaucratic opacity is not a virtue.
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