Care Medical Services PC, DAB CR6088 (2022)

DECISION

I affirm National Government Services' (NGS)1 determination that the effective date for Care Medical Services, PC's (Care Medical) Medicare enrollment is March 4, 2020, with authorized retrospective billing privileges beginning February 3, 20202 .

I.  Procedural History

Care Medical is a New York based internal medicine group participating in the Medicare program as a supplier3 .  Samathi Kemisetti, M.D. (Dr. Kemisetti) is Care Medical's sole

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owner.  CMS Exhibit (Ex.) 1 at 10; CMS Ex. 2 at 8.  On May 1, 2020, NGS informed Care Medical that Dr. Kemisetti's reassignment of benefits to Care Medical was approved with an effective date of February 3, 2020.  CMS Ex. 4 at 27-29; CMS Ex. 10 at 1.

On June 4, 2020, Care Medical requested reconsideration of the effective date.  Care Medical submits that on October 16, 2019, Dr. Kemisetti submitted to the Internal Revenue Service (IRS) a name change request for Dr. Kemisetti's sole owned group “Dr. Sumathi Kemisetti PC” to be changed to “Care Medical Services PC.”  Dr. Kemisetti asserts that because of COVID-19, the processing of the name change with the IRS took much longer than she expected, and she could not submit the Medicare application until the name change was complete.  CMS Ex. 4 at 9.  On August 6, 2020, NGS issued a reconsidered determination, upholding February 3, 2020 as the “effective date” for both Care Medical's enrollment and for Dr. Kemisetti's reassignment of benefits to Care Medical.  CMS Ex. 7.  On October 6, 2020, Care Medical requested a hearing before an Administrative Law Judge (ALJ).

On October 8, 2020, the ALJ4 issued an Acknowledgment and Standing Pre-hearing Order (Order) which set deadlines for the parties to submit written briefs, sworn testimony, and proposed exhibits.  DAB E-file Dkt. C-21-18, Doc. Nos. 2, 2(a).  On November 11, 2020, CMS filed its pre-hearing exchange, which consisted of a brief with an incorporated motion for summary judgment, a proposed exhibit list, and 10 proposed exhibits (CMS Exs. 1-10).  CMS submitted no sworn testimony.  On December 17, 2020, Petitioner submitted a letter as its pre-hearing exchange5 .  DAB E-file Dkt. C-21-18, Doc. No. 6.  The letter, signed by Dr. Kemisetti, requested consideration of an effective date of November 1, 2019.  Care Medical argues that it was not able to file the Medicare enrollment application earlier because of the IRS's delay in processing Dr. Kemisetti's request for a name change.  Care Medical submitted no written direct testimony and no exhibits.

Although CMS moves 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 Dkt. C-21-18, Doc. No. 2(a) at 6.  Neither party submitted witnesses and CMS submitted 10 proposed exhibits.  Other than the December 17, 2020 letter submitted by Dr. Kemisetti, Care Medical submitted no proposed exhibits

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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 1-10 into the record and I have considered all record documents in my decision.

II.  Findings of Fact, Conclusions of Law, and Analysis6

A.  Applicable Authorities

Section 1831 of the Social Security Act (42 U.S.C. § 1395j) (the Act) 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)).  The Act requires the Secretary of Health and Human Services to issue regulations that establish a process for the enrollment of providers and suppliers, including the right to a hearing and judicial review of certain enrollment determinations.  Act § 1866(j) (42 U.S.C. § 1395cc(j).

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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Pursuant to section 1866(h)(1) and (j)(8), a supplier whose enrollment application or renewal application is denied is entitled to an administrative hearing and judicial review.  Pursuant to 42 C.F.R. § 498.3(b)(15), a supplier's effective date of enrollment is an initial determination that is subject to administrative review by an ALJ after a reconsidered determination.  42 C.F.R. § 498.5(l)(1)-(2).  Appeal and review rights are specified by 42 C.F.R. § 498.5.

B.  Discussion

1. On March 30, 2020, Care Medical submitted a CMS-855I Medicare Enrollment application that was processed and approved on May 1, 2020.

After initially enrolling in the Medicare program in 2007, Dr. Kemisetti assigned her Medicare benefits to several medical facilities and organizations during the following years.  In July 2019, Dr. Kemisetti established “Dr. Sumathi Kemisetti Medical PC.”  CMS Ex. 4 at 9.  On August 6, 2019, the IRS assigned Employer Identification Number (EIN) # 84-2625611 to “Dr. Sumathi Kemisetti Medical PC.”  RFH at 11.

In October 2019, Dr. Kemisetti submitted a request to the IRS for a name change for the previously established EIN from “Dr. Sumathi Kemisetti Medical PC” to “Care Medical Services, PC.”  RFH at 19-20.

On March 4, 2020, NGS received a CMS-855I Medicare enrollment application, signed by Dr. Kemisetti, and confirming that it was submitted for the purpose of changing Medicare enrollment information.  CMS Ex. 1 at 7.  The form lists only Dr. Kemisetti as the provider and confirms that she wants Medicare payments to be paid under her Social Security number.  CMS Ex. 1 at 16.  There is no reference to either Dr. Sumathi Kemisetti Medical PC or to Care Medical Services, PC.  CMS Ex. 1 at 17-22.  In a March 6, 2020 letter to Care Medical, the IRS confirmed that Care Medical would retain the previously established EIN.  RFH at 1; CMS Ex. 4 at 9, 33.

On March 30, 2020, NGS received another CMS-855I Medicare enrollment form signed by Dr. Kemisetti and indicating that it was a new enrollment application.  Dr. Kemisetti sought to enroll Care Medical, Dr. Kemisetti's solely owned group practice.  CMS Ex. 5 at 7, 21.  The application further designated the previously established EIN # 84-2625611 for payment and requested an effective date of December 1, 2019.  CMS Ex. 5 at 17, 36.

In an April 21, 2020 letter to Dr. Kemisetti, NGS explained that it had received two applications from the same provider.  NGS further explained that the initial application indicates that the provider would like to collect payments under her Social Security number and the second application reports a tax ID number for payments.  NGS asked which application to process and asked Dr. Kemisetti to call NGS to verify the information.  CMS Ex. 6 at 3.  In a telephone conversation on April 21, 2020, NGS

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confirmed that Dr. Kemisetti's intent was to bill Medicare under the tax ID number assigned to her solely owned group, Care Medical Services, PC, and not under her Social Security number.  CMS Ex. 7 at 4.  The March 4, 2020 application was returned to Dr. Kemisetti and NGS continued to process the March 30, 2020 Medicare enrollment application.  CMS Ex. 7 at 4, CMS Ex. 9.  On May 1, 2020, NGS issued a letter to Care Medical, approving the reassignment of benefits with an effective date of February 3, 2020.7

2. The effective date of Care Medical's Medicare enrollment is March 4, 2020, with retrospective billing privileges beginning on February 3, 2020.

Care Medical submits that after changing the name of the company to Care Medical Services, PC on October 8, 2019, the IRS did not confirm the name change and the continuation of the former EIN until March 6, 2020.  Dr. Kemisetti argues:  “Processing of the name change with [the] IRS took much longer due to COVID-19 then [sic] I anticipated, and I could not submit the Medicare application until the name change was complete.”  RFH; DAB E-file Dkt. C-21-18, Doc. No. 6.

Dr. Kemisetti, on behalf of Care Medical, requests an effective date of November 1, 2019 for Medicare billing privileges.  She does not explain the basis for requesting that specific date.  In the CMS-855I application received by NGS on March 4, 2020, Dr. Kemisetti notes that she is submitting the application to report a change in her Medicare enrollment information.  CMS Ex. 1 at 7.  As noted in the discussion above, Dr. Kemisetti lists only her name as the provider and confirms that she wants Medicare payments to be made under her personal Social Security number.  CMS Ex. 1 at 16.  She lists her primary practice location, in addition to five hospital locations for her practice.  CMS Ex. 1 at 17-23.  For each location, Dr. Kemisetti includes February 1, 2020 as the date that she has seen or will see the first Medicare patient.  Id.  Care Medical does not dispute that the March 4, 2020 enrollment application was returned and was not processed to acceptance.  The CMS-855I Medicare enrollment application that was received by NGS on March 30, 2020 shows Care Medical Services, PC as a new Medicare enrollee and includes Care Medical's Tax ID number.  Dr. Kemisetti, who signed on behalf of Care Medical, includes a primary practice location for Care Medical, as well as six other hospital practice locations.  For each location, Care Medical lists December 1, 2019 as the date that Care Medical first saw or will see a Medicare patient.

The effective date for Medicare billing for physicians, non-physician practitioners, and physician or non-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. § 520(d).  The “date of filing” is the date that the Medicare contractor

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“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).

There is no dispute that the only Medicare enrollment application that Care Medical submitted and which NGS processed to approval was signed by Dr. Kemisetti on March 25, 2020 and received by NGS on March 30, 2020.  CMS Ex. 5 at 32.

Although Care Medical seeks November 1, 2019 as the start date for billing privileges, this date does not correlate to either Medicare enrollment application.  Neither the enrollment application received by NGS on March 4, 2020 nor the enrollment application submitted by Care Medical and received by NGS on March 30, 2020, indicate that services were provided or were scheduled to be provided prior to December 1, 2019.  Dr. Kemisetti asserts that processing of the name change with the IRS took much longer than she anticipated, and she could not submit the Medicare application until the name change was complete.  DAB E-file Dkt. C-21-18, Doc. No. 6.  Thus, regardless of the applicable regulatory restrictions, there is no evidence that Care Medical provided services to Medicare patients as early as November 1, 2019.

When a Medicare enrollment application is approved, CMS (or the Medicare contractor) sets the “effective date for billing privileges” in accordance with 42 C.F.R. § 535.50(d).  The effective date of a physician's or physician organization's Medicare billing privileges 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. § 424.521(a)(1) also permits a supplier whose enrollment application has been approved to bill Medicare services provided up to 30 days prior to the effective date called for under section 424.520(d) and that period of 30 days is referred to as the “retrospective billing period.”  James Shepard, M.D., DAB No. 2793 at 3 (2017).

In this instance, Care Medical's approved enrollment application was filed on March 30, 2020.  Despite that the Medicare enrollment application filed on March 4, 2020 was ultimately returned to Dr. Kemisetti, NGS allowed the March 4, 2020 filing date to serve as the effective date for the subsequently filed and approved application.  Thus, NGS used the earliest possible filing date to establish Petitioner's effective date.  However, NGS incorrectly identified8 February 3, 2020 as the effective date instead of the retrospective billing date under 42 C.F.R. § 424.521(a)(1).  CMS Ex. 7 at 4.

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Care Medical submits that because of COVID-19 and the IRS's delay in processing Care Medical's name change, the enrollment application could not be filed earlier.  Care Medical appears to argue that circumstances beyond its control prevented an earlier filing.  It is apparent therefore, that Care Medical seeks an earlier effective date based on fairness and equity.  However, the Board is “bound by applicable statutes and regulations [including section 424.520(d)] and has no authority to make exceptions to their applicability” on fairness or other equitable grounds.  Shepard, DAB No. 2793 at 9 (2017).  Neither the Board nor I have the authority to overturn the agency's lawful use of its regulatory authority based on principles of equity.  Vijendra Dave, M.D., DAB No. 2672 at 8 (2016), citing Cent. Kan Cancer Inst., DAB No. 2749 at 10 (2016), appeal dismissed, Cent. Kan. Cancer Inst. v. Dep't of Health & Human Services., No. 2:17-cv-02012 (D. Kan. June 2, 2017); see also US Ultrasound, DAB No. 2302 at 8 (2010); and UpturnCare Co., DAB No. 2632 at 19 (2015).

III.  Conclusion

For the foregoing reasons, I affirm March 4, 2020 as the effective date for Care Medical's billing privileges, with authorized retrospective billing privileges beginning on February 3, 2020.

1. NGS is an administrative contractor for the Centers for Medicare & Medicaid Services (CMS).
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2. CMS contends that NGS assigned a March 4, 2020 effective date of enrollment, based on the receipt of the application pursuant to 42 C.F.R. § 424.520(d) and it authorized retrospective billing privileges beginning 30 days earlier on February 3, 2020, pursuant to 42 C.F.R. § 424.521(a)(1).  CMS Br. at 5.  As explained hereafter, February 3, 2020 is actually the first day of a 30-day period for retrospective billing under 42 C.F.R. § 424.521(a) and March 4, 2020 is the effective date.
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3. Petitioner is a “supplier” under the Social Security Act (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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4. The case was initially assigned to a different ALJ and then transferred to the undersigned.
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5. Although Petitioner included no documentary evidence with its pre-hearing exchange, Petitioner included documents with its Request for Hearing (RFH) filed on October 6, 2020.  DAB E-file Dkt. C-21-18, Doc. No. 1.  I will refer to Petitioner's RFH when citing to Petitioner's documentary evidence.
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6. My findings of fact and conclusions of law are set forth in italics and bold font.
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7. As noted in a previous footnote, February 3, 2020 is the authorized retrospective billing date rather than the enrollment effective date.  42 C.F.R. §§ 424.520(d) and 424.521(a)(1); CMS Ex. 7.
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8. On May 1, 2020, NGS first issued its initial determination and listed February 3, 2020 as the effective date for Petitioner's Medicare enrollment and billing privileges.  CMS Ex. 4 at 27-30.  The reconsidered determination continued the misidentification.  CMS Ex. 7.
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