Darlene Chavez, CSW, DAB CR5964 (2021)

DECISION

Petitioner, Darlene Chavez, CSW, is a clinical social worker, practicing in Greenwood Village, Colorado, who participates in the Medicare program as a supplier of services.  She began working for a new practice group, FreedomChoice, LLC, and applied to reassign her benefits to that new employer.  The Centers for Medicare & Medicaid Services (CMS) granted her application, with an effective date of June 12, 2019, and a retrospective billing date of May 13, 2019.  Petitioner, through her employer, now asks for an earlier effective date.

Because she filed her subsequently-approved Medicare application on June 12, 2019, I find that June 12 is the correct effective date for Petitioner’s enrollment.  CMS had the authority to allow 30 days of retrospective billing, to May 13, 2019.

Background

In a notice letter, dated June 27, 2019, the Medicare contractor, Novitas Solutions, advised Petitioner Chavez that it approved her Medicare application to reassign benefits with an “effective date” of May 13, 2019.  CMS Ex. 2.  In fact, the contractor was granting Petitioner a retrospective billing date of May 13, 2019; the effective date of Petitioner’s enrollment is June 12, 2019 (see discussion below).

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Petitioner requested reconsideration, asking for a billing date of April 23, 2019, the date she began providing services to Medicare beneficiaries.  Petitioner explained that her practice group was new to Medicare, did not understand the requirements, and was misinformed, presumably by someone from Medicare.  The practice would suffer severe financial hardship if it were not reimbursed for her early services.  CMS Ex. 3.  

In a reconsidered determination, dated September 20, 2019, the contractor affirmed the initial determination.  CMS Ex. 4.  Petitioner appealed. 

CMS moves for summary judgment.  However, because neither party proposes any witnesses, an in-person hearing would serve no purpose.  See Acknowledgment and Pre‑hearing Order at 3, 5 (¶¶ 4(c)(iv), 8) (October 9, 2019).  I may therefore decide this case based on the written record, without considering whether the standards for summary judgment are satisfied. 

CMS submits its motion and brief (CMS Br.) with four exhibits (CMS Exs. 1-4).  Petitioner relies on her earlier submissions (the requests for reconsideration and for hearing).  In the absence of any objections, I admit into evidence CMS Exs. 1-4.  See Acknowledgment and Pre-hearing Order at 5 (¶ 7).

Discussion

On June 12, 2019, Petitioner filed her subsequently‑approved application to reassign benefits, and June 12, 2019 is therefore the effective date of the reassignment.  42 C.F.R. § 424.520(d).1

Enrollment.  Petitioner Chavez 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 furnished to program beneficiaries, a prospective supplier must enroll in the program.  Act § 1834(j)(1)(A); 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

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Management and Budget.  42 C.F.R. § 424.502.2   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, the effective date for billing privileges “is the later of [t]he date of filing” a subsequently-approved enrollment application or “[t]he date that the supplier first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d) (emphasis added).

If a non-physician practitioner meets all program requirements, CMS may allow her 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).  There is some confusion about the difference between the effective date of enrollment and a 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.

Petitioner’s enrollment.  Here, on June 12, 2019, Petitioner filed her Medicare application to reassign benefits (CMS-855R), which the contractor subsequently approved.  CMS Ex. 1.  Form CMS-855R reassigns the practitioner’s billing privileges to a Medicare-eligible entity, which may submit claims and receive payment for Medicare services provided by the practitioner.  Thus, pursuant to section 424.520(d)(1), the date Petitioner filed her subsequently-approved enrollment application – June 12, 2019 – is the correct effective date.  Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 at 7 (2019); Urology Grp. of NJ, LLC, DAB No. 2860 (2018); Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017), aff’d sub nom. Goffney v. Azar, No. CV 17-8032 MRW (C.D. Cal. Sept. 25, 2019), aff’d sub nom. Goffney v. Becerra, 995 F.3d 737 (9th Cir. 2021).  Pursuant to its authority under section 424.521(a)(1), CMS has allowed Petitioner to bill 30-days retrospectively, so her retrospective billing date is May 13, 2019.

I have no authority to grant Petitioner an earlier effective date based on any equitable or policy arguments.  Sokoloff, DAB No. 2972 at 9.

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Conclusion

Because Petitioner filed her subsequently-approved application to reassign benefits on June 12, 2019, June 12 is the correct effective date.

1. I make this one finding of fact/conclusion of law.
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2. CMS’s electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).
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