Mary Wilson, FNP-C, DAB CR5380 (2019)

DECISION

Noridian HealthCare Solutions (Noridian), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), reassigned Medicare billing for Mary Wilson FNP-C (Petitioner) to Ka’u Wellness, LLC (Ka’u), as of May 1, 2017.  Petitioner requested a hearing before an administrative law judge to dispute this effective date.  As explained herein, Noridian correctly determined Petitioner’s reassignment effective date to be May 1, 2017.  I therefore affirm CMS’ effective date determination.

I. Background

Petitioner, a nurse practitioner, was enrolled in the Medicare program.  On April 11, 2017, she sought to reassign her billing privileges to Ka’u by submitting a Reassignment of Medicare Benefits application1 to CMS through the Provider Enrollment, Chain and

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Ownership System (PECOS).  Petitioner subsequently provided additional information, thus completing her application, on May 1, 2017.  CMS Ex. 1.  Noridian informed Petitioner on June 2, 2017 that it had approved her application and reassigned her billing privileges as of April 1, 2017.2  CMS Ex. 2 at 1.

In her request for reconsideration, Petitioner requested an earlier effective date of December 19, 2016.  CMS Ex. 3 at 2.  She explained that an independent contractor had been responsible for reassigning Petitioner’s billing privileges to Ka’u but failed to do so in a timely manner because of health issues.  Id.  Noridian denied Petitioner’s request on October 12, 2017.  CMS Ex. 4 at 2.

Petitioner timely requested a hearing before an administrative law judge to challenge Noridian’s unfavorable reconsideration decision.  Request for Hearing (RFH).  On November 9, 2017, I was designated to hear and decide this case and issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) to the parties.  On December 14, 2017, CMS timely submitted a pre-hearing exchange, which includes its motion for summary judgment (CMS Br.) and four exhibits (CMS Exs. 1-4).

Petitioner did not timely file a pre-hearing exchange, and I therefore ordered her to explain why she failed to comply with my Pre-Hearing Order.  Petitioner responded and explained that she had failed to read the details of the Pre-Hearing Order and inadvertently failed to file her exchange.  Petitioner did not file any additional documents with her explanation.  I find good cause to accept Petitioner’s explanation (P. Br.) and have also considered the narrative found in her RFH and the document attached thereto (RFH Att. 1).

II. Decision on the Written Record and Admission of Exhibits

In the absence of objection, I admit CMS Exs. 1-4 and RFH Att. 1 into evidence.  Neither party offered written direct testimony of any witness as part of its pre-hearing exchange, meaning an in-person hearing is not necessary in this matter.  Pre-Hearing Order ¶¶ 8-10; Civ. Remedies Div. Pro. §§ 16(b), 19(b).  Therefore, I will decide this case on the record,

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based on the parties’ written submissions and arguments.  Civ. Remedies Div. Pro. § 19(d).  CMS’s motion for summary judgment is denied as moot.

II. Issue

Whether Noridian, acting on behalf of CMS, properly established May 1, 2017, as the effective date for reassignment of Petitioner’s billing privileges.

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.3  Act § 1861(d) (42 U.S.C. § 1395x(d)); see also Act § 1861(u) (42 U.S.C. § 1395x(u)).

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 “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.

For Medicare Part B claims, a beneficiary may assign his or her benefits to an enrolled physician or non‑physician supplier providing services to that beneficiary.  42 U.S.C. § 1395u(b)(3)(B)(ii).  In certain circumstances, a supplier who has received an assignment of benefits may reassign those benefits to an employer, or to an individual or

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entity with which the supplier has a contractual arrangement.  42 U.S.C. § 1395u(b)(6); 42 C.F.R. § 424.80(b)(1)‑(2).  CMS applies the effective date rules at 42 C.F.R. §§ 424.520(d) and 424.521(a)(1) to reassignments of Medicare benefits.  See Medicare Program Integrity Manual (MPIM) §§ 15.5.20(E)(3), 15.17.

B. Findings of Fact and Conclusions of Law4

1. Noridian received Petitioner’s application to reassign Medicare benefits on May 1, 2017 and subsequently processed that application to approval, making that date the effective date of her reassignment.

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” of the enrollment application that was subsequently approved by the contractor 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).  The regulations further allow suppliers to “retrospectively bill” Medicare, meaning CMS permits a supplier to bill Medicare for up to thirty days before the effective date of enrollment if certain circumstances apply.  42 C.F.R § 424.521(a)(1).

Here, Petitioner began providing services on December 1, 2016, see CMS Ex. 3, and submitted a reassignment application that Noridian received on May 1, 2017 which it ultimately processed to approval.  CMS Ex. 1 at 1; CMS Ex. 2 at 1; CMS Ex. 4 at 2.  The record reflects no earlier submitted application that was approved by Noridian.  Therefore, May 1, 2017, was the appropriate effective date of reassignment for Petitioner’s billing privileges.  Pursuant to 42 C.F.R. § 424.521(a)(1), Noridian also granted Petitioner 30 days of retrospective billing, the maximum retroactive period permitted, which allowed her to bill Medicare for services from April 1, 2017.

2. I have no authority to issue equitable relief.

Petitioner does not contest the date Noridian received her reassignment application that it subsequently approved.  Instead, she explains that an independent contractor hired to submit her application had failed to do so because of an “emergency illness.”  RFH at 1.  Petitioner requests that I excuse her failure to timely submit the application and explains that an unfavorable decision would prevent her from receiving compensation for a

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“significant amount” of medical care that she already provided to an underserved area.  Petitioner Response.

I am sympathetic to Petitioner’s position, and recognize she did not personally cause the delay in the filing of her reassignment application.  However, my jurisdiction is limited in this type of case; I am prohibited from overturning a lawful action by CMS under the regulations based on equitable considerations, no matter how compelling.  See, e.g., Cent. Kan. Cancer Inst., DAB No. 2749 at 10 (2016); see also James Shepard, M.D., DAB No. 2793 at 9 (2017).  Though it would be fair to compensate Petitioner for the services she provided to Medicare patients prior to her retrospective billing date, I do not have authority to change Petitioner’s effective date for that reason.  US Ultrasound, DAB No. 2302 at 8 (2010) (“[n]either the ALJ or the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).

V. Conclusion

For the foregoing reasons, I affirm CMS’ determination of the effective date of Petitioner’s reassignment to be May 1, 2017.

• 1. A standardized form application designated “CMS-855R,” designed to allow a Medicare program biller to reassign his or her right to bill Medicare for services rendered to Medicare beneficiaries to an eligible organization or group of which that biller is a member, or to terminate such reassignment of benefits.
• 2. Both Noridian’s initial and reconsidered determinations mistakenly identify April 1, 2017 as the “effective date” of Petitioner’s reassigned billing privileges. CMS Br. at 4; CMS Ex. 1 at 2. The governing regulations define the “effective date” as the date CMS or a contractor receives an enrollment application from a supplier that is eventually approved, in this case May 1, 2017. See 42 C.F.R. § 424.520(d). April 1, 2017 is Petitioner’s retrospective billing date, which is not the same thing. CMS Ex. 1 at 2; 42 C.F.R. § 424.521(a)(1). For clarity and correctness, I use the term “effective date” in this decision to refer to the date Noridian received an application from Petitioner it eventually approved (May 1, 2017), not the date from which it authorized retrospective billing (April 1, 2017).
• 3. Petitioner is considered a “supplier” under the Act and the accompanying regulations.
• 4. My findings of fact and conclusions of law appear as numbered headings in bold italic type.