Marysville Vision Source PC, DAB CR5466 (2019)

DECISION

Petitioner, Marysville Vision Source PC, is a group medical practice located in Marysville, Washington. It applied to enroll in the Medicare program. The Centers for Medicare & Medicaid Services (CMS) granted the application with a retrospective billing date of September 27, 2016 (and, by inference, an effective date of October 27, 2016). Petitioner now challenges that effective date.

Because Petitioner filed its subsequently-approved enrollment application on October 27, 2016, I find that October 27 is the correct effective date of Petitioner's enrollment. CMS had the authority to grant Petitioner a September 27, 2016 retrospective billing date.

Background

In a letter dated December 22, 2016, the Medicare contractor, Noridian Healthcare Solutions, advised Petitioner Marysville that it approved the practice's Medicare enrollment with an "effective date" of September 27, 2016. CMS Ex. 9. In fact, as explained below, the contractor was granting Petitioner a billing date of September 27; the effective date of Petitioner's enrollment was October 27, 2016 (see discussion below).

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Petitioner sought reconsideration, asking that the effective date of its enrollment be made retroactive to August 1, 2016, and claiming that a contractor employee had assured the practice that August 1, 2016, would be its effective date. CMS Ex. 10. In a reconsidered determination, dated March 6, 2017, the contractor denied Petitioner an earlier effective date. CMS Ex. 11 at 2-5.1

Petitioner appealed.

Although CMS has moved for summary judgment, neither party proposes any witnesses, so an in-person hearing would serve no purpose. See Acknowledgment and Pre-hearing Order at 3, 5 (¶¶ 4(c)(iv), 8-10). I may therefore decide the case based on the written record without considering whether the standards for summary judgment are satisfied.

With its motion and brief (CMS Br.), CMS submits twelve exhibits (CMS Exs. 1-12). Petitioner submits a written argument (P. Br.) and ten exhibits (P. Exs. 1-10). In the absence of any objections, I admit into evidence CMS Exs. 1-12 and P. Exs. 1-10.

Discussion

Petitioner filed its subsequently-approved application on October 27, 2016, and its Medicare enrollment can be no earlier than that date. 42 C.F.R. § 424.520(d).2

Enrollment. Petitioner 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 it furnishes 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. § 424.502.3 When CMS determines that a

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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. The effective date for its billing privileges "is the later of the date of filing" a subsequently-approved enrollment application or the date the organization began furnishing services at a new practice location. 42 C.F.R. § 424.520(d). The date of filing is the date the Medicare contractor receives an application. Karthik Ramaswamy, M.D., DAB No. 2563 at 3 (2014).

If a physician organization 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).

The Medicare contractors have created much confusion because they are inclined to conflate the effective date with the retrospective billing date, as the contractor did in this case. CMS Ex. 9. The reconsidered determination acknowledges that the contractor received Petitioner's application on October 27, 2016, but it nevertheless mischaracterizes the "effective date" as September 27. CMS Ex. 11 at 3. In fact, September 27 is the retrospective billing date. The distinction is important; 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.

Here, on October 27, 2016, the Medicare contractor received Petitioner's enrollment application, which the contractor subsequently approved. CMS Ex. 3. Thus, pursuant to section 424.520(d), the date Petitioner filed its subsequently-approved enrollment application – October 27, 2016 – is the correct effective date of enrollment.

Petitioner, however, complains that, prior to September 27, the practice continued to provide services, relying on assurances from a contractor representative that its enrollment date would be August 1, 2016. P. Br.; P. Ex. 1. The Departmental Appeals Board has repeatedly rejected similar arguments, finding that neither the administrative law judge nor the Board has the authority to alter an effective date for equitable reasons, even upon a showing of affirmative misconduct on the part of the employee (which, in any event, Petitioner has not shown here). Willie Goffney, Jr., M.D., DAB No. 2763 at 8-9 (2017); see Illinois Dep't of Children & Family Servs., DAB No. 2734 at 8 (2016).

Finally, Petitioner complains that the contractor rejected an earlier application even though it could show that it provided all requested information within 30 days. On August 12, 2016, Petitioner filed an enrollment application. CMS Ex. 1. The contractor rejected that application on October 18, 2016, apparently because Petitioner did not timely submit information that the contractor had requested. CMS Ex. 2 at 4. The regulations authorize the contractor to reject an application if the supplier fails to furnish

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complete information within 30 days of the date requested. 42 C.F.R. § 424.525(a)(1). I have no authority to review a rejected application. 42 C.F.R. § 424.525(d).

Conclusion

Because Petitioner filed its subsequently-approved enrollment application on October 27, 2016, that date is the proper effective date of its Medicare enrollment.

1. The reconsidered determination also inaccurately refers to September 27, the retrospective billing date, as the "effective date."
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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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