Hudson Chiropractic Corporation, ALJ Ruling 2021-1 (HHS CRD Nov. 17, 2020)

REMAND

Petitioner, Hudson Chiropractic Corporation, participates in the Medicare program as a supplier of services.  After its Medicare billing privileges were deactivated, it applied to re-enroll in the program.  The Centers for Medicare & Medicaid Services (CMS) granted the application, with an effective date of April 19, 2018.  Petitioner appeals.

Because no evidence in this record establishes the date Petitioner filed its subsequently-approved re-enrollment application, and because CMS has ignored my orders to supply such evidence, I remand this matter to CMS to give the agency an opportunity to develop evidence necessary to establish the correct effective date for Petitioner's re-enrollment.

Discussion

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

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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. § 424.502.1   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 non-physician practitioner organization, the effective date for its billing privileges "is the later of the date of filing" a subsequently-approved enrollment application or "the date that [it] first began furnishing services at a new practice location."  42 C.F.R. § 424.520(d) (emphasis added).

In this case, by letter dated May 4, 2018, the Medicare contractor, Noridian Healthcare Solutions, advised Petitioner that it approved its Medicare re-enrollment application, although with a gap in its billing privileges from April 4 through 18, 2018, which means that Petitioner's effective date of re-enrollment is April 19, 2018 (although the letter did not mention that date).  CMS Ex. 3.

Petitioner requested reconsideration.  The contractor issued a reconsidered determination, dated October 3, 2018.  There, after finding that Petitioner filed its application to revalidate and reactivate its Medicare enrollment, the contractor affirmed the initial determination (although without explicitly mentioning the actual effective date).  CMS Ex. 5.  Petitioner appealed.

Before me, CMS maintains that it received Petitioner's reenrollment application on April 19, 2018, so that is the effective date of its re-enrollment.  The problem is that CMS submitted no evidence of the date Petitioner submitted the application.  It refers to the reconsidered determination, but the contractor's conclusion is not evidence.  No evidence in this record establishes the date that Petitioner filed its subsequently-approved enrollment application.

In an order dated October 20, 2020, I directed CMS to submit, within ten days, a copy of the reenrollment application or similar evidence showing the date the application was filed.  CMS did not respond.

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On November 3, 2020, I issued an order to show cause, directing CMS to submit, no later than November 10, 2020, "the necessary evidence or to show cause why I should not remand this case to CMS for adequate development."  CMS did not respond.  Because I have no evidence establishing the date Petitioner submitted its enrollment application, I am unable to determine the correct effective date of Petitioner's Medicare enrollment.

Conclusion

Critical evidence is missing from this record, and CMS has declined to provide it.  I therefore remand this case to CMS to give the agency an opportunity to develop the record fully and properly so that I may decide it.  See 42 C.F.R. § 498.56(d).

1. CMS's electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).
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