Steven Hearne, MD and Delmarva Heart, LLC, DAB CR6048 (2022)

DECISION

Petitioner Steven Hearne, MD, is a cardiologist, practicing in Maryland; Delmarva Heart. LLC is his practice group.  After the Medicare contractor deactivated Petitioner Hearne's reassignment of benefits to Delmarva, he submitted a new application, seeking to reactivate the reassignment.  The Centers for Medicare & Medicaid Services (CMS) granted the application, effective November 27, 2019, with a retrospective billing date of October 27, 2019.  As a result, Petitioner's Medicare coverage lapsed from August 22 through October 26, 2019.  Petitioner asks that the effective date for reactivating his reassignment of benefits be changed to August 22, 2019.

Because Petitioner filed his subsequently-approved reassignment-of-benefits application on November 27, 2019, November 27 is the earliest possible effective date for the reassignment.  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, 995 F.3d 737 (9th Cir. 2021).

I have no authority to review the deactivation.  Sokoloff, DAB No. 2972 at 6; Wishon Radiological Med. Grp., Inc., DAB No. 2941 at 6-7 (2019); Ark. Health Grp., DAB No. 2929 at 7-9 (2019); James Shepard, M.D., DAB No. 2793 at 8 (2017).

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Background

In a notice dated December 20, 2019, the Medicare contractor, Novitas Solutions, advised Petitioner Hearne that it approved his request to reassign Medicare benefits with an "effective date" of October 28, 2019.  CMS Ex. 5.  In fact, the contractor was granting Petitioner a retrospective billing date of October 28, 2019; the effective date of enrollment is November 27, 2019 (see discussion below).1

Petitioner requested reconsideration.  CMS Ex. 6 at 3.  In a reconsidered determination, dated March 26, 2020, a contractor hearing specialist affirmed the November 27, 2019 effective date.  She also determined that the Petitioner met the requirements for retrospective billing and affirmed the October 28, 2019 billing date.  CMS Ex.7.

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 4, 6 (¶¶ 4(c)(iv), 10) (June 24, 2020).  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 seven exhibits (CMS Exs. 1-7).  Petitioner submits its brief (P. Br.).  In the absence of any objections, I admit into evidence CMS Exs. 1-7.  See Acknowledgment and Pre-hearing Order at 5 (¶ 7).

Discussion

On November 27, 2019, Petitioner filed his subsequently-approved application to reassign his Medicare billing privileges, and his effective date can be no earlier than that date.  42 C.F.R. § 424.520(d).2

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Enrollment.  Petitioner Hearne 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 supplier must enroll in the program.  Social Security Act §§ 1834(j), 1835(a); 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. § 424.502.3   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 organization, the effective date for billing privileges "is the later of the date of filing" a subsequently-approved enrollment application or "the date that the supplier first began furnishing services at a new practice location."  42 C.F.R. § 424.520(d) (emphasis added).

If a physician meets all program requirements, CMS may allow him 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).

Revalidation and deactivation.  To maintain its billing privileges, a supplier must, at least every five years, resubmit and recertify the accuracy of its enrollment information, a process referred to as "revalidation."  42 C.F.R. § 424.515.  In addition to periodic revalidations, CMS may, at other times and for its own reasons, ask a supplier to recertify the accuracy of its enrollment information.  42 C.F.R. § 424.515(d) and (e).  Within 60 days of receiving CMS's notice to recertify, the supplier must submit an appropriate enrollment application with complete and accurate information and supporting documentation.  42 C.F.R. § 424.515(a)(2).

If, within 90 days from receipt of CMS's notice, the supplier does not furnish complete and accurate information and all supporting documentation or does not resubmit and certify the accuracy of its enrollment information, CMS may deactivate its billing privileges, and no Medicare payments will be made.  42 C.F.R. §§ 424.540(a)(3); 424.555(b).  To reactivate its billing privileges, the supplier must complete and submit a

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new enrollment application.  42 C.F.R. § 424.540(b)(1).  It is settled that, following deactivation, section 424.520(d) governs the effective date of reenrollment.  Sokoloff, DAB No. 2972 at 6-7; Urology Grp., DAB No. 2860 at 7; Goffney, DAB No. 2763 at 7.

I have no authority to review a deactivation.  Sokoloff, DAB No. 2972 at 6; Ark. Health Grp., DAB No. 2929 at 7-9.

Petitioner's deactivation and reenrollment.  In a notice letter, dated March 18, 2019, the contractor directed Petitioner to revalidate his Medicare enrollment no later than June 30, 2019, updating or confirming the information in his record.  CMS Ex. 1 at 33.  On June 14, 2019, Petitioner responded by submitting his revalidation application, Form CMS-855I.  CMS Ex. 1 (for date of filing, see CMS Ex. 1 at 36).

The contractor determined that the application was insufficient and, by letter dated July 17, 2019, requested additional information.  The letter specifically asked Petitioner Hearne whether his services would be rendered as part of a group or organization to which he would reassign his benefits.  The letter warned that the contractor might reject the application if Petitioner did not furnish the complete information within 30 days.  CMS Ex. 2.

Petitioner did not respond.

In a letter dated August 22, 2019, the contractor advised Petitioner Hearne that his Medicare enrollment application was approved but his reassignment of benefits to Delmarva Heart had been deactivated because he did not provide the information requested in the July 17 letter.  CMS Ex. 3.

Effective filing date.  On November 27, 2019, Petitioner filed another enrollment application (Form CMS-855R), asking that his Medicare benefits be reassigned to Delmarva, which the contractor subsequently approved.  CMS Ex. 4 (for date of filing, see CMS Ex. 4 at 10).  Thus, pursuant to section 424.520(d), the date Petitioner filed his subsequently-approved enrollment application – November 27, 2019 – is the correct effective date of enrollment.  Sokoloff, DAB No. 2972 at 6-7; Urology Grp., DAB No. 2860 at 7-9; Goffney, DAB 2763 at 7.

Petitioner complains that he did not receive the contractor's March 18, 2019 letter requesting revalidation nor its July 17, 2019 request for additional information.  Those letters were sent to Atlantic General Hospital, whose representative filled out and submitted the 855I application.  CMS Ex. 1; see CMS Ex. 1 at 32.  Petitioner mentions a business relationship with Atlantic General that resulted in the Hospital's credentialing staff assisting with certain document preparation.  Request for Hearing (RFH) at 1.  However, Petitioner does not argue that the Hospital's representative improperly submitted the 855I.  Petitioner implies, without expressly saying, that the representative did not tell him about the July 17 request or the deactivation.  In the meantime, he

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continued, in good faith, to provide services to Medicare beneficiaries, expecting to be paid for those services.

I have no authority either to review the deactivation or to grant Petitioner an earlier effective date based on any equitable or policy arguments.  Chaplin Liu, M.D., DAB No. 2976 at 7 (2019); Sokoloff, DAB No. 2972 at 9; Wishon Radiological Med. Grp., Inc., DAB No. 2941 at 6-7; James Shepard, M.D., DAB No. 2793 at 8.

Conclusion

Because, on November 27, 2019, Petitioner filed his subsequently-approved application to reassign his Medicare benefits, CMS properly granted the reassignment effective that date.  CMS also had the authority to allow the supplier to bill up to 30 days prior to that effective date.

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 initially in this case.  CMS Ex. 5.  On reconsideration, the hearing specialist corrected the error.  CMS Ex. 7 at 3.  The distinction matters.  I have the authority to review "the 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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2. I make this one finding of fact/conclusion of law.
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3. CMS's electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).
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