Arthur L. Jenkins III, M.D. and Jenkins NeuroSpine LLC, DAB No. 3070 (2022)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Arthur L. Jenkins III, M.D. and Jenkins NeuroSpine LLC (Petitioners) appeal the decision of an Administrative Law Judge (ALJ) that upheld October 22, 2018 as the effective date of Petitioners’ Medicare enrollment based on the date of filing of the enrollment application that was subsequently approved.  Arthur L. Jenkins III, M.D. and Jenkins NeuroSpine LLC, DAB CR5787 (2020) (ALJ Decision).  The ALJ further found that Petitioners were granted retrospective billing privileges beginning September 22, 2018, which is thirty days before the effective date of enrollment.  Id.  For the reasons explained below, we summarily affirm the ALJ Decision.

Legal Background

A supplier of Medicare services, such as a physician, must enroll (and maintain its enrollment) in the Medicare program to receive payment for Medicare-covered items and services furnished to Medicare beneficiaries.  42 C.F.R. §§ 400.202 (defining “supplier”), 424.500, 424.502, 424.505, 424.510.¹  The Medicare enrollment process includes identifying a supplier, validating a supplier’s eligibility to provide items or services to Medicare beneficiaries, identifying and confirming the supplier’s practice locations and owners, and granting the supplier Medicare billing privileges.  Id. § 424.502 (defining “Enroll/Enrollment”).  To enroll in Medicare, a supplier must submit a complete and accurate enrollment application with supporting documentation, including “[d]ocumentation associated with regulatory and statutory requirements necessary to establish a [] supplier’s eligibility to furnish Medicare covered items or services to beneficiaries in the Medicare program.”  Id. § 424.510(d)(1), (d)(2)(iii)(B).

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The enrollment application and supporting documentation must be submitted to a designated Medicare contractor for review and approval.  Id. § 424.510(d)(1).  An incomplete or insufficient application may be rejected if the “supplier fails to furnish complete information on the . . . enrollment application within 30 calendar days from the date of the contractor request for the missing information.”  Id. § 424.525(a)(1).  When an enrollment application is rejected, the supplier must complete and submit a new enrollment application.  Id. § 424.525(c).  A supplier whose enrollment application has been rejected has no right to appeal the rejection.  Id. § 424.525(d) (“Enrollment applications that are rejected are not afforded appeal rights.”).  When a physician’s enrollment application is approved, the effective date of the physician’s billing privileges is determined by regulation and is the later of: “(1) The date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or (2) The date that the supplier first began furnishing services at a new practice location.”  Id. § 424.520(d)(1).  The “date of filing” means “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, 69,766-67 (Nov. 19, 2008).  Accord Alexander C. Gatzimos, MD, JD, LLC d/b/a Michiana Adult Med. Specialists, DAB No. 2730, at 5 (2016).

A physician whose enrollment application has been approved may be permitted retrospective billing privileges in accordance with 42 C.F.R. § 424.521.  A physician “may retrospectively bill for services” that were provided up to 30 days (and, in certain disaster situations, up to 90 days) prior to the physician’s “effective date” if certain circumstances are satisfied.  42 C.F.R. § 424.521(a).  Specifically, a physician may retrospectively bill Medicare if: (1) the physician has met all program requirements (including state licensure requirements); (2) the services were furnished at the physician’s enrolled practice location; and (3) “circumstances precluded enrollment in advance of providing services to Medicare beneficiaries[.]”  Id.

A determination of the effective date of a supplier’s billing privileges, unlike the rejection of an application, is an “initial determination” subject to review under 42 C.F.R. Part 498.  42 C.F.R. § 498.3(a)(1), (b)(15).  A supplier whose enrollment application was approved with an effective date may request reconsideration of the determination of the effective date.  See Victor Alvarez, M.D., DAB No. 2325, at 3 (2010).  If dissatisfied with the reconsidered determination, the supplier may request a hearing before an ALJ.  42 C.F.R. § 498.5(l)(2).  A supplier may request review of the ALJ’s decision by the Departmental Appeals Board (Board) by filing a written request for review.  Id. §§ 498.5 (f)(1); 498.82(a).  The request for review “must specify the issues, the findings of fact or conclusions of law with which the party disagrees, and the basis for contending that the findings and conclusions are incorrect.”  Id. § 498.82(b).

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Case Background²

Petitioner, Arthur L. Jenkins III, M.D., is a licensed physician practicing in New York with a specialty in neurosurgery.  CMS Exhibit (CMS Ex.) 19, at 8, 10.  Dr. Jenkins is the sole proprietor of petitioner Jenkins NeuroSpine LLC.  CMS Ex. 19, at 36.  Between November 2017 and August 2018, Dr. Jenkins filed three separate Medicare enrollment applications (Form CMS-855I).  ALJ Decision at 2 (citing CMS Exs. 1, 5, 10).  None of the applications identified Jenkins NeuroSpine LLC as the business entity through which Dr. Jenkins would bill Medicare.  See CMS Ex. 1, at 24; CMS Ex. 5, at 7; CMS Ex. 10, at 17.  Instead, the applications identified various other business entities purportedly owned by Dr. Jenkins, including Arthur L. Jenkins MD LLC, Arthur Jenkins M.D. LLC, and Arthur Jenkins MD LLC.  Id.

For each of the three applications, CMS’s Medicare contractor, National Government Services (NGS), requested additional information from Dr. Jenkins.  ALJ Decision at 2; see also CMS Exs. 2, 6, 11, 13.  Dr. Jenkins submitted application revisions and other information to NGS (CMS Exs. 3, 7, 8, 12, 14, 15, 16); however, NGS determined that the additional information Petitioner submitted was insufficient.  ALJ Decision at 2.  NGS rejected each of the three applications.  Id.; see also CMS Exs. 4, 9, 17.

On October 22, 2018, NGS received Petitioners’ fourth Medicare enrollment application (the October Application).  ALJ Decision at 3 (citing CMS Ex. 19, at 1).  The October Application indicated that Dr. Jenkins would bill Medicare through Jenkins NeuroSpine LLC, a business entity he established in New York.  Id. (citing CMS Ex. 19, at 17).  On December 6, 2018, NGS approved the October Application with an effective date of October 22, 2018, and, consistent with 42 C.F.R. § 424.521, permitted retrospective billing privileges beginning September 22, 2018.  Id. at 3, 5 (citing CMS Ex. 20).

Petitioners requested that NGS reconsider the effective date of enrollment, asserting that the effective date should be January 1, 2018, when Dr. Jenkins went into private practice.  Id. at 3 (citing CMS Ex. 21).  On reconsideration, NGS rejected Petitioners’ request for an earlier effective date and upheld the October 22, 2018 effective date.  Id. (citing CMS Ex. 23).  Thereafter, Petitioners filed a request for hearing before an ALJ.

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The ALJ Proceeding and Decision

Before the ALJ, Petitioners did not argue that NGS incorrectly applied 42 C.F.R. § 424.520(d) in determining October 22, 2018, as the effective date of their Medicare enrollment or that the regulation did not apply.  Request for Hearing.  Instead, Petitioners argued that the circumstances of their case, which involved bureaucratic delays by the State of New York in establishing and registering Jenkins Neurospine LLC, compelled an earlier enrollment date of January 1, 2018.  Id. at 1-2.  Specifically, Petitioners stated:

A requested retroactive date to January 1, 2018 is appropriate under the factual situation presented by this case.  The delays in processing documents by New York State should not prejudice the rights of the appellant.  It is fundamental law that forfeitures are abhorrent under these circumstances.  The good faith care and treatment of patients must prevail over any allegation of forfeiture.

Jenkins NeuroSpine LLC cared and treated for Medicare patients while New York State delayed and procrastinated in furnishing all of the documentation necessary for licensure.  Despite repeated requests and unanswered telephone calls, New York State failed and refused to process timely applications.

Id.

CMS filed a motion for summary judgment and prehearing brief, arguing that NGS correctly determined the effective date of Petitioners’ enrollment and billing privileges because the October Application (received by NGS on October 22, 2018) was the only application that NGS approved.  CMS Motion for Summary Judgment and Prehearing Brief at 8-10.  CMS further argued that an ALJ has no authority to grant the equitable relief Petitioners seek.  Id. at 10-11.

Petitioners filed a response, insisting that the “inordinate and unconscionable” processing delays by New York State should not prejudice their rights.  Petitioners’ Brief (P. Br.) at 3.  Petitioners asserted that “C.M.S. by virtue of any claim of forfeiture in this case results in inappropriate unjust enrichment.”  Id. at 4.  Further, Petitioners argued that NGS’s action results in Petitioners’ involuntary servitude, a violation of the Thirteenth Amendment.  Id.  According to Petitioners, given their legal and ethical duties to “treat all of the Medicare patients who followed [Dr. Jenkins] into private practice beginning January 1, 2018[,]” CMS “is obligated to pay” the supplier.  Id.

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On December 28, 2020, the ALJ issued a decision based on the written record and denied CMS’s motion for summary judgment as moot.  ALJ Decision at 3-4.  The ALJ admitted, without objection, all of the exhibits submitted by the parties.  Id. at 3.  In her decision, the ALJ upheld NGS’s determination that the effective date of enrollment of Petitioners’ Medicare billing privileges is October 22, 2018, with retrospective billing beginning September 22, 2018.  Id. at 1.  The ALJ found that among the four applications submitted to NGS in 2017 and 2018, the October Application was the only application “that NGS processed to completion.”  Id. at 5.  Thus, the ALJ concluded that NGS’s determination of Petitioners’ effective date of enrollment was correct under 42 C.F.R. § 424.525(d).  Id.  The ALJ further concluded that she had no authority to grant Petitioners an earlier effective date because NGS had rejected Petitioners’ three prior applications and rejected applications are not afforded appeal rights.  Id. at 6 (citing Lindsay Zamis, M.D., a Prof’l Corp., DAB No. 2802, at 9 (2017), and James Shepard, M.D., DAB No. 2793, at 8 (2017)).³

The ALJ rejected Petitioners’ contention that NGS’s determination of the effective date violated Dr. Jenkins’s constitutional rights under the Thirteenth Amendment (involuntary servitude).  ALJ Decision at 7.  The ALJ noted she was not persuaded by Petitioners’ contention that Dr. Jenkins was “forced to care for Medicare beneficiaries without compensation” and, in any event, may not decline to apply federal statutes or regulations on constitutional grounds.  Id. (citing Cornelius M. Donohue, DPM, DAB No. 2888, at 9 (2018), and Zahid Imran, M.D., DAB No. 2680, at 9 (2016)).  Citing section 424.520(d), the ALJ explained that the effective date of Medicare enrollment is governed by federal regulation, and Petitioners’ constitutional arguments provide no basis to disregard the effective date prescribed by regulation.  Id.

The ALJ further declined to grant an earlier effective date based on Petitioners’ equitable arguments.  ALJ Decision at 7-8.  Petitioners argued that they were unable to file an acceptable application earlier than October 22, 2018, due to New York State’s “‘outrageous delay’ in processing their request for authorization to do business” in the state; that they acted in “good faith” when Dr. Jenkins treated Medicare beneficiaries that followed him into private practice; that CMS will be unjustly enriched if Petitioners are unable to claim reimbursement for services provided to Medicare beneficiaries between January 1, 2018 and September 22, 2018; and that “forfeitures are abhorrent under these circumstances.”  Id.  (citing P. Br. at 2-4).  Noting that Petitioners’ arguments “sound in

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equity,” the ALJ explained that ALJs are not “authorized to provide equitable relief by reimbursing or enrolling a supplier that does not meet statutory or regulatory requirements.”  Id. at 8(citing US Ultrasound,DAB No. 2302, at 8 (2010)).  The ALJ acknowledged that while she “may agree” that Petitioners did not cause the delay in obtaining New York’s approval to do business in New York, these facts are “irrelevant” to determining the effective date of Medicare enrollment under section 424.520(d).  Id.  Thus, the ALJ concluded there was “no basis to overturn NGS’s effective date determination.”  Id.

Board Proceedings

Petitioners timely requested review of the ALJ Decision.  Petitioners’ Request for Review, however, is a word-for-word replication of the Request for Hearing submitted to the ALJ.  Compare Request for Review (RR) at 1-2 with Request for Hearing at 1-3.⁴  Petitioners do not identify any legal issues or factual bases for challenging the ALJ’s findings of facts or conclusions of law.  See 42 C.F.R. § 498.82(b).  Instead, Petitioners repeat their equitable and constitutional arguments, asserting that they should be granted an earlier effective date due to delays by the State of New York in processing applications relating to Jenkins Neurospine LLC and the fact that they treated Medicare beneficiaries beginning in January 2018 with the expectation of payment.  RR at 1.

CMS filed a response brief arguing that the ALJ properly upheld October 22, 2018, as the effective date of Petitioners’ Medicare enrollment.  CMS’s Response in Opposition to Appellant’s Request for Review at 10.  CMS asserts that the ALJ correctly concluded that she could not grant Petitioners an earlier effective date because Petitioners’ first three enrollment applications were rejected and not appealable.  Id. at 9.  CMS points out that, among other deficiencies, Petitioners’ first three enrollment applications did not seek to enroll Jenkins NeuroSpine LLC as a Medicare supplier.  Id.  As a result, according to CMS, the first three applications “have no bearing or relevance on the enrollment of Appellant NeuroSpine.”  Id. at 10.  CMS also argues that the ALJ properly concluded that she could not decline to apply a valid regulation, even on constitutional grounds, and that Petitioners are not entitled to equitable relief for the delays they suffered while obtaining the required authorization for Jenkins NeuroSpine LLC from the State of New York.  Id. at 10-13.

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Standard of Review

The Board’s standard of review on a disputed factual issue is whether the ALJ decision is supported by substantial evidence; the standard of review on a disputed issue of law is whether the ALJ’s decision is erroneous.  Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s or Supplier’s Enrollment in the Medicare Program (Guidelines), accessible at https://www.hhs.gov/about/agencies/dab/
different-appeals-at-dab/appeals-to-board/guidelines/enrollment/index.html?language=en

Analysis

We summarily affirm the ALJ Decision because Petitioners’ Request for Review fails to identify any legal or factual error by the ALJ.

Pursuant to 42 C.F.R. § 498.82(b), a request for the Board’s review of an ALJ decision “must specify the issues, the findings of fact or conclusions of law with which the party disagrees, and the basis for contending that the findings and conclusions are incorrect.”  The Board’s Guidelines (cited above) unequivocally explain that the Board “expects that the basis for each challenge to a finding or conclusion in the ALJ decision or dismissal will be set forth in a separate paragraph or section, and that the accompanying arguments will be concisely stated.”  Guidelines (Starting the Review Process, ¶ (d)).

When faced with a submission that fails to conform to the Guidelines, “the Board may summarily affirm a factual or legal finding if a party’s presentation of an issue regarding that finding is such that the Board cannot discern the legal or factual basis for the party’s disagreement with it.”  Wisteria Care Ctr., DAB No. 1892, at 7 (2003); see also Yakup Akyol, DAB No. 3017, at 4 (2020) (summarily affirming the ALJ’s conclusion regarding the effective date of enrollment when Petitioner failed to articulate any basis for challenging that conclusion); Amber Mullins, N.P., DAB No. 2729, at 5 (2016) (“Failure to articulate at least some disagreement with the bases for the ALJ decision permits the Board to summarily affirm the ALJ’s findings of fact and conclusions of law.”).

Here, Petitioners fail to identify a finding of fact or conclusion of law in the ALJ Decision with which they disagree, or any basis for contending that the ALJ Decision is not supported by substantial evidence or is legally erroneous.  Petitioners do not contend that the ALJ based her conclusion on unsupported factual findings; nor do Petitioners argue that the ALJ misapplied, or failed to apply, the applicable law.  Indeed, because the Request for Review is the same letter Petitioner submitted to the Civil Remedies Division, prior to the issuance of the ALJ Decision, the request for review does not address any part of the ALJ Decision.

Petitioners do not challenge the ALJ’s finding that NGS received the October Application on October 22, 2018, or the ALJ’s finding that the only enrollment application that NGS

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processed to completion was the October Application.  See ALJ Decision at 5-6.  Still further, Petitioners do not challenge the applicability of 42 C.F.R. § 424.520(d), or the ALJ’s application of that regulation in determining the effective date of Petitioners’ Medicare enrollment.  See id. at 5.  Nor do Petitioners challenge the ALJ’s finding that they were granted the maximum period of retrospective billing permitted (up to 30 days prior to the effective date) under 42 C.F.R. § 424.521.  See id.  Finally, Petitioners do not contend that the ALJ erred in declining to review the rejection of Petitioners’ three prior enrollment applications.  See id. at 6.

We find the ALJ Decision is supported by substantial evidence and free of legal error.  Although Petitioners reiterated their constitutional arguments and requests for equitable relief before the Board, those arguments were fully considered and properly rejected by the ALJ.  ALJ Decision at 7-8.  Petitioners identified no error in the ALJ’s analysis of those issues, and we find no error.  Accordingly, we summarily affirm the ALJ Decision.  See Wisteria, DAB No. 1892, at 7; Akyol, DAB No. 3017, at 4.

Conclusion

We summarily affirm the ALJ Decision and conclude that the effective date of enrollment of Petitioners’ Medicare billing privileges is October 22, 2018, with retrospective billing privileges beginning September 22, 2018.

Endnotes

¹ We cite to, and apply, the enrollment regulations in effect on December 6, 2018, the date CMS’s contractor issued the initial determination regarding the effective date of Petitioners’ billing privileges.  See, e.g., Gregory J. Frazer, Au.D., Ph.D., DAB No. 3038, at 1 n.1 (2021).  CMS has since revised several regulations governing Medicare enrollment and billing privileges.  See, e.g., 86 Fed. Red. 62,240, 62,357 (Nov. 9, 2021) (adding “Additional Effective Dates” under 42 C.F.R. § 424.522 and revising 42 C.F.R. § 424.525(a) to include ten rejection scenarios as reasons for rejecting an enrollment application).  These changes do not apply to this appeal and do not affect our analysis.

² The factual information in this section is drawn from the ALJ Decision and the record and is not intended to replace, modify, or supplement the ALJ’s findings of fact or conclusions of law.

³ The ALJ further noted, in dicta, that “even if [she] were authorized to review NGS’s rejection of Petitioners’ earlier applications, [she] would not find that NGS acted improperly.”  ALJ Decision at 6.  We express no opinion about this part of the ALJ Decision because enrollment applications that are rejected for failing to timely submit complete information or documentation are not subject to review by ALJs or the Board.  See 42 C.F.R. § 424.525(d); see also Gregory J. Frazer, Au.D., Ph.D.,DAB No. 3038, at 10-11 (2021).

⁴ The only differences between the two submissions include the following non-substantive alterations: (1) the Request for Review was not printed on the attorney-representative’s letterhead; (2) the Request for Review was unsigned by the attorney-representative; and (3) the Request for Hearing submitted to the Civil Remedies Division included signature lines for Jenkins NeuroSpine LLC and Dr. Jenkins, both of which Dr. Jenkins signed.  Moreover, the documents attached to the Request for Review were the same documents submitted to the ALJ with the Request for Hearing.