Ellen Bischoff, APRN, DAB CR6062 (2022)

DECISION

I affirm the reconsidered determination’s conclusion that the effective date for the reassignment of Medicare benefits from Ellen Bischoff, APRN (Petitioner) to Rehabilitation Institute, PLC (Rehabilitation) is January 14, 2020.  The retrospective billing date is December 15, 2019.

I.  Procedural History

Petitioner Ellen Bischoff is an advanced practice registered nurse (APRN) practicing in Kentucky, who participates in the Medicare program as a supplier.1   On February 13, 2020, CGS Administrators, LLC (CGS), the contractor for the Centers for Medicare and Medicaid Services (CMS), informed Petitioner that her reassignment of Medicare benefits to Rehabilitation was approved with an effective date of January 14, 2020, and a

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retrospective billing date of December 15, 2019.2  CMS Exhibit (Ex.) 8 at 1.  By letter dated February 24, 2020, Petitioner sought reconsideration, requesting that CGS “retro” the effective date to September 1, 2019.  CMS Ex. 9 at 1.  On May 27, 2020, CGS issued an unfavorable decision and sustained the January 14, 2020 effective date for the reassignment.  CMS Ex. 1 at 2.  On June 9, 2020, Petitioner filed an appeal, which is treated as a request for hearing (RFH) before an administrative law judge.  Departmental Appeals Board (DAB) E-file 1.

On June 11, 2020, the Administrative Law Judge (ALJ)3 issued an acknowledgment of the RFH and issued a Standing Prehearing Order (Order) which set deadlines for the parties to submit written briefs, sworn testimony, and proposed exhibits.  DAB E-file 2, 2(a).  On July 15, 2020, CMS filed its pre-hearing brief, a motion for summary judgment, a proposed exhibit list, and nine proposed exhibits (CMS Exs. 1-9).  CMS submitted no written direct testimony.  On August 21, 2020, the ALJ issued an Order to Show Cause why Petitioner’s RFH should not be dismissed because Petitioner had not filed her pre‑hearing exchange by the August 20, 2020 deadline.  The Order to Show Cause set a deadline of August 31, 2020, for Petitioner’s response and stated that absent a timely response, the ALJ would dismiss the RFH.  DAB E-file 6 at 1-2.  In a letter dated August 21, 2020, Rehabilitation’s Office Manager, Lois Sheffield,4 explained that Petitioner missed the deadline because two of the three office personnel were out of the office because of COVID-19.  Ms. Sheffield confirmed that the ALJ may decide the case based on Petitioner’s submissions.  DAB E-file 7 at 1.  Petitioner submitted no written direct testimony and no additional exhibits.

Although CMS moved for summary judgment, I find that this matter may be decided on the written record, without considering whether the standards for summary judgment are satisfied.  In the Order, the ALJ gave guidelines for the parties to submit sworn written testimony.  The Order explicitly explained that an in-person hearing would only be necessary if a party submitted sworn testimony and the opposing party wished to cross‑examine the witness.  DAB E-file 2(a) at 6.  Neither party submitted witnesses.  CMS submitted nine proposed exhibits.  Other than the documents that Petitioner

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attached to the RFH, Petitioner submitted no proposed exhibits in response to the Order.  Neither party objected to any proposed exhibits or to any submitted documents.  Accordingly, there being no objection, I receive CMS Exhibits 1-9 and I have considered all record documents in my decision.

II.  Findings of Fact, Conclusions of Law, and Analysis5

1. Applicable Authorities

Section 1831 of the Social Security Act (the Act) (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B.  Payment under the program for services rendered to Medicare‑eligible beneficiaries may only be made to eligible providers of services and suppliers.  Act §§ 1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395u(h)(1)).

To receive Medicare payments as a “supplier” of services furnished to program beneficiaries, a prospective supplier must enroll in the program.  42 C.F.R. § 424.505. When CMS determines that a prospective supplier meets the applicable enrollment requirements, it grants Medicare privileges, which allows the supplier to submit claims and receive payments from Medicare for covered services to program beneficiaries.  In certain circumstances, a supplier who has received an assignment of benefits from the beneficiary may reassign those billing privileges to an employer or to an individual or entity with which the supplier has a contractual agreement.  Act § 1842(b)(6) (42 U.S.C. § 1395u(b)(6)); 42 C.F.R. § 424.80(b)(1)-(2).  If the supplier wishes to reassign the billing privileges, the supplier must submit an additional enrollment application.  Act § 1842(b)(6); 42 C.F.R. § 424.80(a)-(b).  The effective date of billing privileges for the supplier is the later of the date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor or the date that the supplier first began furnishing services at a new practice location.  42 C.F.R. § 424.520(d).

Further, under the regulations, CMS may permit a 30-day retroactive period of billing if the supplier has met all program requirements and if circumstances precluded enrollment in advance of providing services to Medicare beneficiaries.  42 C.F.R. § 424.521(a)(1)(i).  CMS applies the effective date rules at 42 C.F.R. §§ 424.520(d) and 424.521(a)(1) to reassignment of Medicare benefits.  See Gaurav Lakhanpal, M.D., DAB No. 2951 at 6-7 (2019).

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2. Discussion

1. On January 14, 2020, Petitioner submitted a CMS-855R application to reassign her Medicare benefits to Rehabilitation, which CGS approved.

Petitioner’s CMS-8551 Medicare Enrollment Application (CMS-8551) was approved on April 16, 20196 as a change of information request.  CMS Exs. 2, 5 (emphasis added).  While the form identifies the address to which correspondence may be sent and the name and address of the individual to be contacted if questions arise during the processing of the application, the form does not indicate an individual or entity to whom Medicare benefits may be assigned.  CMS Ex. 2 at 3-4.

Petitioner also submitted a CMS-885R Medicare Enrollment Application Reassignment of Medicare Benefits, which was signed by Petitioner on March 18, 2019.  The CMS‑855R form identifies Rehabilitation as the entity to which Petitioner sought to assign Medicare benefits.  CMS Ex. 3 at 3 (Page 3, Section 2).  In a letter dated April 15, 2019, CGS told Petitioner that additional information was needed to continue processing Petitioner’s CMS‑855R reassignment application.  CMS Ex. 4 at 1.  The letter stated:  “We encourage you to submit the requested revisions and/or supporting documentation within 10 days.  We may reject your application(s) if you do not furnish complete information within 30 calendar days from the postmarked date of this letter pursuant to [42 C.F.R. § 424.525].”  Id.  Petitioner did not provide the requested information and the enrollment application was rejected on May 16, 2019.  CMS Ex. 6.

Petitioner submitted an additional CMS-855R on January 14, 2020.  CMS Ex. 1 at 2.  CGS approved that application on February 13, 2020, with an effective date of January 14, 2020, and a retrospective billing date of December 15, 2019.  CMS Exs. 7, 8.

2. The effective date of Petitioner’s Medicare enrollment is January 14, 2020. The retrospective reassignment period began December 15, 2019.

Petitioner challenges the effective date.  In Petitioner’s February 24, 2020 request for reconsideration, Petitioner asserts that September 1, 2019 is the correct effective date, contending that Petitioner “had submitted all the paper work [sic] correctly.”  CMS Ex. 9 at 1.  In the RFH, Petitioner asserts that her Medicare enrollment began in March 2019

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and that she received a letter in April stating that her reassignment of benefits request was approved.  RFH at 1.  Petitioner further asserts that nothing else was requested at the time of approval.  RFH at 1.  Petitioner acknowledges, however, that after receiving denials for October 2019 services, a “provider enrollment representative” told her that she needed to submit a new CMS-855R.  RFH at 1.

In the CMS-855R application signed by Petitioner on January 7, 2020, Petitioner inserts an effective date of September 1, 2019.  CMS Ex. 7 at 3.  In the June 9, 2020 RFH, Petitioner contends that the date of approval should have been April 2019, that Rehabilitation should be paid for her services rendered between October through December 2019, and that the date of approval “should have been from April 2019 onwards.”  RFH at 1.

It is apparent that Petitioner’s arguments in her request for reconsideration and in her RFH are based on Petitioner’s misunderstanding of the Medicare application process and especially the reassignment requirements.  Petitioner mistakenly states that the initial CMS-855R was approved in April 2019.  CGS’s letter of April 16, 2019, however, clearly states that it is Petitioner’s change of information request (CMS‑855I) that was approved.  CMS Ex. 5.  The letter contains neither an approval nor any mention of Petitioner’s request for a reassignment of Medicare benefits to Rehabilitation.  While the letter refers to Petitioner’s request to add Lois Sheffield as a contact person, there is no mention of Rehabilitation.  Neither in the request for reconsideration nor in the RFH does Petitioner acknowledge CGS’s letter of April 15, 2019, requesting additional information in order to process Petitioner’s CMS-855R application.  Even in Petitioner’s letter of August 21, 2020, and after CMS filed its brief, Petitioner does not acknowledge or deny CGS’s April 15, 2019 letter requesting information from Petitioner.  In the August 21, 2020 letter, Petitioner continues to argue that she submitted a complete CMS-855R in April 2019 which “was completely accepted.”  DAB E-file 7 at 1.

Inasmuch as Petitioner does not specifically deny that she received CGS’s April 15, 2019 request for information or contend that she provided the requested information, I must conclude that CGS requested the information on April 15, 2019 and that Petitioner failed to provide the requested information.  Further, Petitioner acknowledges that when she contacted CGS in January 2020, CGS confirmed that there was not a CMS-855R on file and that she would need to submit a new one.  In response to that information, Petitioner submitted a new CMS-855R dated January 7, 2020.  CMS Ex. 7.

Despite Petitioner’s arguments concerning the approval of her initial CMS-855R form, Petitioner requests a September 1, 2019 effective date.  CMS Ex. 9 at 1; RFH at 1.  While Petitioner does not explain the basis for the September 1, 2019 date, I note that September 1, 2019 is the effective date that Petitioner included in her January 2020 CMS-855R.  Petitioner does not, however, identify in the RFH or in her letter of August 21, 2020 a regulation or authority which permits the provider, rather than CMS, to

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determine an effective date for Medicare billing.  Petitioner cites no authority to establish that CMS is bound by an arbitrary date that a provider or supplier inserts in an application.

Contrary to Petitioner’s assertions, the effective date for Medicare billing for physicians, non-physician practitioners, and physician or non-physician practitioner organizations is the later of the “date of filing” or the date that the provider or 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 can process to approval.  Donald Dolce, M.D., DAB No. 2685 at 8 (2016).  Further, under the regulations, CMS may permit a 30-day retroactive period of billing.  42 C.F.R. § 424.521(a)(1).

Petitioner acknowledges in the RFH that billing for Petitioner’s services for October 2019 was denied.  RFH.  Thus, even if Petitioner’s employment with Rehabilitation began in October 2019, the effective date for billing privileges must be determined by the later of the date that CGS received the signed application that CGS ultimately approved or the date the supplier first began furnishing services at a new practice location.  73 Fed. Reg. 69,726, 69,769 (2008); 42 C.F.R. § 424.520(d).  There is no dispute that on January 14, 2020, Petitioner submitted a new CMS-855R form that was ultimately approved on February 13, 2020.  CMS Ex. 1 at 2.  Because CGS approved Petitioner’s January 14, 2020 CMS-855R application, the date of filing is January 14, 2020.  This is later than the date that Petitioner first began furnishing services at Rehabilitation.  Therefore, January 14, 2020 is the effective date of reassignment.  Further, in accordance with 42 C.F.R. § 424.521(a)(1), CGS properly exercised its authority to permit a 30-day retrospective billing period beginning on December 15, 2019.

III.  Conclusion

Because CGS approved Petitioner’s January 14, 2020 enrollment application, CMS properly established January 14, 2020 as the effective date for the reassignment, with a retrospective billing period beginning on December 15, 2019.

1. Petitioner is a “supplier” under the Act and regulations.  Act § 1861(d) (42 U.S.C. § 1395x(d)); 42 C.F.R. § 405.902 (definition of “supplier”).
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2. In the February 13, 2020 letter, CGS stated that the effective date is December 15, 2019.  CMS Ex. 8 at 1.  However, the December 15, 2019 date is the 30-day retrospective billing date based on 42 C.F.R. § 424.521(a).  The effective date, in accordance with 42 C.F.R. § 424.520(d), is January 14, 2020, the date Petitioner filed the CMS-855R application that CGS approved.
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3. The case was initially assigned to a different ALJ and then transferred to the undersigned.
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4. On June 11, 2020, Petitioner gave permission for Lois A. Sheffield to act on her behalf before the ALJ.  DAB E-file 4.
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5. My findings of fact and conclusions of law are set forth in italics and bold font.
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6. In its pre-hearing brief, CMS states that the form was submitted on March 29, 2019.  The form itself does not indicate the date on which it was signed or submitted.  The only date is March 15, 2019; the date inserted by Petitioner as effective date for which communication may be sent to Petitioner’s contact person.
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