Mahendra Shah, MD, DAB CR5894 (2021)

DECISION

Novitas Solutions, Inc. (Novitas), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), approved the request of Mahendra Shah, MD (Petitioner or Dr. Shah), to enroll in Medicare as a solo practitioner, effective December 18, 2018, with retrospective billing permitted as of November 18, 2018.  Petitioner requested a hearing before an administrative law judge to obtain an earlier effective date.  Because Novitas approved Petitioner’s enrollment application that it received on December 18, 2018, it correctly determined that the effective date of Petitioner’s Medicare enrollment was December 18, 2018.  Therefore, I affirm the effective date determination.

I.  Background

Petitioner is a physician licensed to practice in Pennsylvania.  CMS Exhibit (Ex.) 2 at 7.  On or about May 18, 2018, Petitioner submitted a Medicare enrollment application (Form CMS-855I) to enroll in Medicare as a solo practitioner at a new practice location.  CMS Ex. 2 at 18, 28, 31.  In a letter dated May 23, 2018, Novitas requested additional information regarding the application.  CMS Ex. 3 at 1.  The letter also informed

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Petitioner that Novitas might reject the enrollment application if Petitioner did not provide the requested information.  Id.  By letter dated June 22, 2018, Novitas rejected the application because Petitioner did not provide the requested information.  CMS Ex. 4 at 1.

On or about June 22, 2018, Petitioner submitted another enrollment application, in which he attempted to provide the information that was missing from the prior application.  See CMS Ex. 5 at 37, 41.  In a letter dated July 5, 2018, Novitas acknowledged receiving Petitioner’s second application, but again requested additional information.  CMS Ex. 6 at 1.  Novitas rejected Petitioner’s second application by letter dated August 6, 2018.  CMS Ex. 7 at 1.  Novitas again stated that Petitioner had failed to provide the requested information.  Id.

On December 18, 2018, Novitas received a third enrollment application from Petitioner.  See, e.g., CMS Ex. 8 at 19.  By letter dated February 1, 2019, Novitas approved the application.  CMS Ex. 9.  Novitas’ letter stated that the effective date of Petitioner’s change in enrollment was November 18, 2018.1   Id. at 2.  Petitioner requested reconsideration in a letter dated February 12, 2019.  CMS Ex. 11 at 2.

In his reconsideration request, Petitioner requested an effective date of June 30, 2017.  Id.  He explained that he had changed from group practice to solo practice in 2017, but that his Medicare enrollment was not updated to reflect this due to a “clerical error” by a member of his staff.  Id.  Novitas issued a reconsidered determination dated April 1, 2019, in which it found that Petitioner “ha[d] not provided evidence to support an earlier effective date.”  CMS Ex. 1 at 1, 3.

Petitioner requested a hearing before an administrative law judge, and the case was assigned to me.  At my direction, my office acknowledged Petitioner’s hearing request and provided a copy of my Standing Prehearing Order (Prehearing Order).  The Prehearing Order directed each party to file a prehearing exchange consisting of a brief and any supporting documents, including the written direct testimony of any proposed witnesses, and set forth the deadlines for those filings.  Prehearing Order ¶¶ 4-5.  In response to the Prehearing Order, CMS filed a motion for summary judgment and brief (CMS Br.) and thirteen proposed exhibits (CMS Exs. 1-13).  CMS did not list any proposed witnesses.  Petitioner filed a brief opposing summary judgment (P. Br.).  Petitioner did not offer any proposed exhibits, but identified three individuals as

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“potential witnesses.”  See P. Br. at 7.2   CMS objected to the witnesses identified by Petitioner because Petitioner did not offer the written direct testimony of the witnesses as exhibits.

I do not hear oral direct testimony.  My Prehearing Order advised the parties that they must offer as an exhibit the written direct testimony of any proposed witness.  Prehearing Order ¶¶ 4.c.iv, 8.  The Prehearing Order also explained that an in-person hearing would only be necessary if a party offered the written direct testimony of a witness and the opposing party requested cross-examination.  Prehearing Order ¶¶ 8-10; Civil Remedies Division Procedures (CRDP) §§ 16(b), 19(b); see Pac. Regency Arvin, DAB No. 1823 at 8 (2002) (holding that the use of written direct testimony for witnesses is permissible so long as the opposing party has the opportunity to cross‑examine those witnesses).  Because Petitioner did not offer the written direct testimony of its potential witnesses, I sustain CMS’s objection.  Further, I need not convene a hearing for CMS to cross‑examine witnesses for whom Petitioner did not offer written direct testimony.  Therefore, I decide this case based on the parties’ written submissions, without regard to whether the standards for summary judgment are satisfied.  I deny CMS’s motion for summary judgment as moot.

II.  Issue

The issue in this case is whether Novitas, acting on behalf of CMS, properly established December 18, 2018, as the effective date of Petitioner’s Medicare enrollment as a solo practitioner.

III.  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)).

IV.  Discussion

A. Applicable Legal Authority

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” 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)).

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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 provider or 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 limited retrospective billing under 42 C.F.R. § 424.521.

B. Findings of Fact and Conclusions of Law3

1. On December 18, 2018, Novitas received Dr. Shah’s application to change his enrollment to permit him to bill Medicare as a solo practitioner and subsequently approved the application.

2. The effective date of Dr. Shah’s enrollment to bill Medicare as a solo practitioner is December 18, 2018.

The effective date 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).

It is undisputed that, on December 18, 2018, Novitas received a Form CMS-855I requesting to enroll Dr. Shah as a solo practitioner.  CMS Ex. 1 at 2; P. Br. at 1.  It is also undisputed that Novitas subsequently approved the application.  CMS Ex. 9; P. Br. at 1.  Accordingly, as required by regulation, the effective date of Dr. Shah’s enrollment as a solo practitioner is December 18, 2018.

3. The applicable regulations provide no basis to set June 30, 2017, as Petitioner’s effective date of enrollment.

Petitioner argues that he should be permitted to bill Medicare for services he provided in good faith beginning June 30, 2017.  P. Br. at 6.  Petitioner implies, but does not explicitly state, that June 30, 2017, is the date he first began seeing patients as a solo

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practitioner.  Id.; see also CMS Ex. 11 at 2 (stating that Dr. Shah has been treating Medicare beneficiaries “since 6/30/2017”).  Petitioner argues that, pursuant to 42 C.F.R. § 424.520(d), Medicare enrollment may be effective as of the date the supplier first began furnishing services at a new practice location.  P. Br. at 6.  However, as Petitioner concedes, section 424.520(d) provides that a supplier’s effective date will be either the date the application was filed or the date the supplier first began furnishing services at a new practice location, whichever is later.  42 C.F.R. § 424.520(d); see also P. Br. at 6.  In the present case, the date Petitioner filed the application that was approved is later than the date he first began seeing patients as a solo practitioner.  Accordingly, the regulations do not permit me to set Petitioner’s effective date of enrollment based on the date he first began providing services at his new practice location.

Petitioner next argues that the effective date should be retroactive because he acted in good faith and his office staff “spent countless hours” attempting to “navigate the complex and arcane process set up by Medicare through Novitas for provider enrollment.”  P. Br. at 5.  Petitioner’s arguments that he and his staff were not at fault for causing the delay in processing his enrollment application represent claims for equitable relief.  However, as I explain in the next section of this decision, equitable arguments are not a basis to change the effective date of Petitioner’s enrollment.

4. Petitioner’s equitable arguments are not a basis to grant an earlier effective date of Medicare enrollment.

Petitioner argues that Novitas gave him incorrect information about the requirements to change his billing from a group practice to a solo practice.  P. Br. at 2-5.  He contends that, because of the confusing information Novitas provided, it took over a year to complete the required changes to his Medicare enrollment.  Id. at 5.  Petitioner requests that I consider his efforts to comply and the purportedly confusing information Novitas provided as “mitigating factors.”  Id.  These contentions suggest that Petitioner may be arguing that he is entitled to an earlier effective date based on the doctrine of equitable estoppel ‒ i.e., he relied to his detriment on false or misleading information provided by Novitas.

However, appellate decisions of the DAB hold that equitable estoppel will not lie against a government entity absent some type of affirmative misconduct.  See, e.g., Richard Weinberger, M.D. & Barbara Vizy, M.D., DAB No. 2823 at 19 (2017) (citing Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 419-21 (1990)).  As the Weinberger & Vizy decision emphasized, “affirmative misconduct appears to require something more than failing to provide accurate information or negligently giving wrong advice.”  Id. (internal quotation marks and citations omitted).  Petitioner’s characterization of his staff’s interactions with Novitas might support an inference that Novitas employees negligently gave wrong advice, but not that they committed affirmative misconduct.  Therefore, I find no basis to overturn the effective date determination based on equitable estoppel.

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Petitioner additionally argues that, during the delay in processing his request to enroll as a solo practitioner, he continued to treat Medicare beneficiaries in good faith and “was not properly compensated for his work.”  P. Br. at 5.  However, an administrative law judge is not authorized to provide equitable relief by reimbursing or enrolling a supplier that does not meet statutory or regulatory requirements.  US Ultrasound, DAB No. 2302 at 8 (2010) (citing Regency on the Lake, DAB No. 2205 (2008)).  Finally, to the extent Petitioner argues that the effective date of his enrollment is inequitable due to the mitigating circumstances presented, I may not set aside CMS’s lawful exercise of its discretion based on principles of equity.  See, e.g., Cent. Kan. Cancer Inst., DAB No. 2749 at 10 (2016).  For all these reasons, Petitioner’s equitable arguments are not a basis to grant him an earlier effective date.  Nor am I authorized to change the effective date of Petitioner’s enrollment based on any of the applications that Novitas rejected.

5. I have no authority to review Novitas’ rejection of Petitioner’s May and June 2018 enrollment applications.

The regulations define a rejected application as follows:

Reject/Rejected means that the provider or supplier’s enrollment application was not processed due to incomplete information, or that additional information or corrected information was not received from the provider or supplier in a timely manner.

42 C.F.R § 424.502.  Petitioner does not dispute that Novitas rejected the applications that Petitioner submitted in May 2018 and June 2018.  P. Br. at 1.

Petitioner first attempted to change his Medicare enrollment to bill as a solo practitioner by submitting Form CMS-855I, which Novitas received on May 18, 2018.  CMS Exs. 2, 4.  Novitas requested additional information from Petitioner but ultimately rejected the application after Petitioner failed to respond timely.  CMS Exs. 3, 4.  Petitioner then submitted a second Form CMS-855I on June 22, 2018.  CMS Ex. 5.  After receiving the application, Novitas again requested additional information from Petitioner, but again Petitioner failed to respond timely, and Novitas rejected this application.  CMS Exs. 6, 7.

Petitioner argues that Novitas gave him incorrect information about the requirements to change his billing from a group practice to solo practice.  P. Br. at 2-5.  Petitioner additionally argues that the incomplete responses he provided represented a “harmless mistake.”  Id. at 1.  Petitioner may be arguing that, had Novitas provided clear instructions, he would have completed the May and June 2018 enrollment applications correctly.  Alternatively, he may be arguing that, even if he provided incorrect or

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incomplete information in his applications, Novitas should not have rejected his applications because the errors were “harmless.”  Either way, the thrust of these arguments is that Novitas should not have rejected Petitioner’s earlier applications.  However, an administrative law judge may not review a contractor’s decision to reject an enrollment application.  42 C.F.R. § 424.525(d); James Shepard, M.D., DAB No. 2793 at 3 (2017).

As the Shepard decision explains, a supplier’s argument that the Medicare contractor did not process a prior application properly “is an implicit request that we assess the reasonableness or legality of [the contractor’s] decision to reject the . . . application.  However, section 424.525(d) plainly prohibits [administrative law judge] or Board review of that decision.”  DAB No. 2793 at 8.  Therefore, if it is Petitioner’s contention that Novitas should have approved one of his earlier applications and awarded him an earlier effective date, this argument would amount to a backdoor challenge to the contractor’s rejection of his application ‒ a determination for which there are no administrative appeal rights.  Id.

V.  Conclusion

For the reasons explained above, I affirm that the effective date of Dr. Shah’s Medicare enrollment is December 18, 2018.

1. Novitas incorrectly referred to November 18, 2018 as the effective date of Petitioner’s Medicare enrollment.  CMS Ex. 9 at 1.  Pursuant to 42 C.F.R. § 424.521(a), November 18, 2018 is the date from which retroactive billing is permitted.  The effective date of Petitioner’s enrollment is December 18, 2018, as provided in 42 C.F.R. § 424.520(d).
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2. Petitioner did not paginate his brief.  I cite to the PDF page numbers as the document is displayed in DAB E-File.
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3. My findings of fact and conclusions of law appear as numbered headings in bold italic type.
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