Welim S. Azinge, M.D., DAB CR5373 (2019)

DECISION

Noridian Healthcare Solutions, Inc. (Noridian), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), granted Medicare billing privileges to Welim S. Azinge, M.D. (Petitioner or Dr. Azinge) effective June 6, 2017 and allowed retrospective billing from May 7, 2017. Petitioner requested a hearing before an administrative law judge to dispute this effective date. As explained herein, Noridian correctly determined that Petitioner’s Medicare enrollment and associated billing privileges became effective June 6, 2017 with a retrospective billing date of May 7, 2017. I therefore affirm CMS’s effective date determination.

I. Background

On June 6, 2017, Noridian received a Form CMS-855I to enroll Petitioner in the Medicare program and establish Medicare billing privileges. CMS Exhibit (Ex.) 1 at 2; CMS Ex. 2 at 1-42. Noridian approved this application and enrolled Petitioner in the Medicare program with billing privileges effective June 6, 2017. CMS Ex. 3 at 1.

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Petitioner requested reconsideration of Noridian’s initial determination and asked that her effective date be changed to October 24, 2016 – the date she began treating Medicare patients. CMS Ex. 4 at 1. In its September 21, 2017 reconsidered determination, Noridian denied Petitioner’s request for an earlier effective date. Id.

Petitioner timely requested a hearing before an administrative law judge. I was designated to hear and decide this case and on November 16, 2017, issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) that required each party to file a pre-hearing exchange and any supporting documents. Pre-Hearing Order ¶ 4.

CMS filed a Motion for Summary Judgment (CMS Motion), Memorandum in Support (CMS Br.) and four exhibits (CMS Exs. 1-4) five days after its December 21, 2017 filing deadline. On January 4, 2018, I issued an Order to Show Cause (CMS OSC) giving CMS 10 days to show good cause for its failure to timely fail its pre-hearing exchange. CMS OSC at 1. CMS explained that its late filing was caused by an internal clerical error during transfer from a different regional office. CMS Resp. to OSC at 2. On that basis, I found good cause to allow CMS’s late filing and extended Petitioner’s time to file her pre-hearing exchange accordingly. Order Discharging Show Cause Order and Extending Pre-Hearing Exchange Deadlines at 1.

Petitioner also failed to file her pre-hearing exchange in a timely manner. I therefore issued an Order to Show Cause (Petitioner OSC) on February 15, 2018 giving Petitioner until March 1, 2018 to file her pre-hearing exchange and explain her failure to file timely. Petitioner OSC at 1-2. Petitioner responded that she had been unaware of the prior filing deadlines. P. Response to OSC at 1. Because CMS failed to timely file its pre-hearing exchange, I find good cause to allow Petitioner to file out of time.

Petitioner also submitted three supporting documents.1 I therefore construe her response to my show-cause order and its accompanying exhibits to constitute her pre-hearing exchange.

II. Decision on the Written Record and Admission of Exhibits

Neither party objected to the exhibits offered by the other. Therefore, in the absence of objection, I admit CMS Exs. 1-4 and P. Exs. 1-3 into evidence. Neither party offered written direct testimony of any witness as part of its pre-hearing exchange, meaning an in-person hearing is not necessary in this matter. Pre-Hearing Order ¶¶ 8-10; Civ. Remedies Div. Pro. 16(b), 19(b). Therefore, I will decide this case on the record, based

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on the parties’ written submissions and arguments. Civ. Remedies Div. Pro. 19(d). CMS’s motion for summary judgment is denied as moot.

III. Issue

The issue in this case is whether Noridian, acting on behalf of CMS, properly established June 6, 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); see also Social Security Act (Act) § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

V. Discussion

A. Applicable Law

The 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” like Petitioner 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 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 under the requirements stated in 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).

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B. Findings of Fact and Conclusions of Law2

1. Noridian received Dr. Azinge’s Medicare enrollment application on June 6, 2017 and subsequently processed that application to approval, making that date the effective date of her enrollment.

The effective date3  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 concedes that she did not complete her Medicare enrollment until June 2017. P. Response to OSC at 1. Noridian indicates in its reconsidered determination that it received Petitioner’s Medicare enrollment application on June 6, 2017, which it ultimately approved. CMS Ex. 1 at 2. CMS submitted no evidence to corroborate Noridian’s June 6, 2017 receipt of Petitioner’s enrollment application. However, Dr. Azinge’s enrollment application is postmarked June 2, 2017 by certified priority U.S. mail, so it is reasonable to conclude Noridian received Petitioner’s application on June 6, 2017. CMS Ex. 2 at 28. Because she sent her application by certified mail, Petitioner could easily rebut this date of receipt with U.S.P.S. tracking information; the fact that she has not contested the receipt date asserted by CMS satisfies me that the date of receipt of her enrollment application was in fact June 6, 2017.

Noridian subsequently approved the application that was received June 6, 2017 and assigned a retrospective billing date of May 7, 2017. CMS Br. at 4; CMS Ex. 3 at 1. The plain language of the governing regulations requires me to find the effective date of

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Petitioner’s Medicare enrollment to be June 6, 2017. 42 C.F.R. §§ 424.520(d), 424.521(a)(1).

2. I have no authority to consider Dr. Azinge’s equitable arguments.

The substance of Petitioner’s pre-hearing exchange is devoted to her argument that her Medicare enrollment was delayed due to the inaction of her billing company, which she had relied on to file her enrollment application. P. Response to OSC at 1. Her argument and exhibits make an equitable claim for relief, acknowledging the delay in filing her application, but relying on the quality of treatment she provided to Medicare beneficiaries prior to her filing date. P. Exs. 1-3.

I am fully sympathetic to Petitioner’s position, and recognize she did not personally cause the delay in filing of her enrollment application. However, my jurisdiction in this case is limited to review of CMS’s determination of the effective date of Petitioner’s enrollment application under § 424.520(d). As I have explained, CMS properly determined pursuant to the controlling regulations that June 6, 2017 is Petitioner’s effective date of enrollment, as that is the date Noridian received an application from her that it was able to successfully approve. Though it might be fair to compensate Petitioner for the services she provided to Medicare patients prior to her retrospective billing date, I do not have authority to provide equitable relief based on principles of fairness or equitable estoppel, and thus I am unable change Petitioner’s effective date for that reason. US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ or the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).

IV. Conclusion

I affirm CMS’s determination that Petitioner’s effective date for Medicare billing privileges is June 6, 2017, with a retrospective billing date of May 7, 2017.

1. For clarity and consistency, Petitioner’s Supporting Documents numbered 11a-11c in DAB E-file are referred to in this opinion as P. Exs. 1-3.
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2. My findings of fact and conclusions of law appear as numbered headings in bold italic type.
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3. Both Noridian’s reconsidered determination and CMS’s brief mistakenly identify May 7, 2017 as the “effective date” of Petitioner’s enrollment. CMS Br. at 4; CMS Ex. 1 at 2. The governing regulations define the “effective date” of enrollment as the date CMS or a contractor receives an enrollment application from a supplier that it eventually approved. See 42 C.F.R. § 424.520(d). Here, May 7, 2017 is the retrospective billing date, which is not the same thing. CMS Ex. 1 at 2; 42 C.F.R. § 424.521(a)(1). For clarity and correctness, I use the term “effective date” in this decision to refer to the effective date established by regulation (June 6, 2017), not the date from which retrospective billing is authorized (May 7, 2017).
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