Hannah Neenan, NP, DAB CR5419 (2019)

DECISION

The effective date of the reassignment of Medicare benefits of Petitioner, Hannah Neenan, NP, is July 23, 2018, with retrospective billing privileges beginning June 23, 2018.

I. Background and Procedural History

Petitioner, a nurse practitioner, submitted via the Provider, Enrollment, Chain, and Ownership System (PECOS)1 an application to reassign her benefits to David G. Smithson, MD, PC, on May 1, 2018.2 See CMS Exhibit (Ex.) 3 at 1. On May 1, 2018, Wisconsin Physicians Service Insurance Corporation (WPS), a Medicare administrative

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contractor, sent separate email messages to Petitioner and Dr. Smithson requesting that each submit an electronic signature for the enrollment application. P. Exs. 1 at 1-2; 2 at 1-2. Petitioner reports that, on May 1, 2018, her office manager, Larecia Prilliman, "received and replied to" a May 1, 2018 email message containing an electronic signature request. P. Br. at 1-2; see CMS Ex. 4 at 1. Although Petitioner reports that "[t]he emailed signature was entered and appeared to go through without any problems and without any indication of difficulty," a report dated one week later, on May 8, 2018, reports "PENDING E-SIGNATURES" as the status of the application. P. Br. at 2; P. Ex. 1 at 3. After WPS did not receive the requested electronic signatures, it sent Petitioner an email message informing her that it had rejected the application for the following reason: "APPLICANT UNRESPONSIVE: FAILURE TO PROVIDE UPDATED CERTIFICATION STATEMENT." P. Ex. 3 at 1 (capitalization in original).

On July 20, 2018, Petitioner mailed a hard copy Form CMS-855R enrollment application to reassign benefits to David G. Smithson, MD, PC, that was received on July 23, 2018. CMS Ex. 2 at 1 (reflecting receipt on the 204th day of the year, July 23, 2018) and 5 (postmark date of July 20, 2018). WPS approved Petitioner's application on July 31, 2018, at which time it reported that the effective date of the reassignment was June 23, 2018.3 CMS Ex. 3 at 1.

Petitioner, through Dr. Smithson, submitted a request for reconsideration that was received on August 3, 2018. CMS Ex. 4 at 1. Petitioner argued the following, in pertinent part:

1. An online Medicare Enrollment Application was made on May 1, 2018, and the e-mailed Receipt Notification ... is enclosed.
2. Also, on May 1, 2018, a PECOS Electronic Signature Request was received and replied to, using the link included at the bottom of the email (enclosed).
3. There is no other contact information available on the PECOS website and our impression was that everything was going as planned.
4. Our next correspondence with PECOS was via email, over two months later, on July 5, 2018, notifying us that the application was rejected due to "failure to provide updated certification statement" (enclosed).

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CMS Ex. 4 at 1. Petitioner also complained that the May 1, 2018 email message containing the development request originated from a "do-not-reply" email account "which inhibits contact with PECOS for ongoing updates." CMS Ex. 4 at 1. Petitioner further requested an effective date of April 17, 2018,4 for her reassignment of benefits, arguing that she "did not hear from PECOS for over two months and [was] not aware there were problems with the application." CMS Ex. 4 at 1.

WPS issued a reconsidered determination on September 18, 2018, in which it determined that "the CMS-855R application has been processed correctly." CMS Ex. 1 at 2. WPS explained that it assigned an effective date of June 23, 2018, which was 30 days prior to date of receipt of the application.5 CMS Ex. 1 at 2.

Petitioner submitted a request for an administrative law judge (ALJ) hearing that was received on November 1, 2018. ALJ Carolyn Cozad Hughes issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) on November 14, 2018, at which time she directed the parties to file their respective pre-hearing exchanges.6 CMS filed a brief and memorandum in support of its motion for summary judgment (CMS Br.), along with four proposed exhibits (CMS Exs. 1-4). Petitioner filed a brief (P. Br.) and seven exhibits (P. Exs. 1-7). In the absence of any objections, I admit CMS Exs. 1-4 and P. Exs. 1-7 into the evidentiary record.

A hearing for the purpose of cross-examination is unnecessary because neither party has submitted written direct testimony. Pre-Hearing Order §§ 16, 19. I consider the record in this case to be closed, and the matter is ready for a decision on the merits.7

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II. Issue

Whether the effective date of Petitioner's reassignment of benefits is July 23, 2018, with retrospective billing privileges beginning June 23, 2018.

III. Jurisdiction

I have jurisdiction to hear and decide this case. 42 C.F.R § 498.3(b)(15); Victor Alvarez, M.D., DAB No. 2325 at 8-12 (2010); see also 42 U.S.C. § 1395cc(j)(8).

IV. Findings of Fact, Conclusions of Law, and Analysis8

Pursuant to 42 C.F.R. § 424.520(d), the effective date of Petitioner's reassignment of benefits is July 23, 2018, which is the date of filing of the Medicare enrollment application that WPS was able to process to approval, and retrospective billing privileges allowing an earlier date of reassignment have been authorized, effective June 23, 2018.

As a nurse practitioner, Petitioner is a "supplier" for purposes of the Medicare program. See CMS Ex. 3 at 1; see also 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202 (definition of supplier); 498.2. A "supplier" furnishes items or services under Medicare and the term applies to physicians or other practitioners who are not included within the definition of the phrase "provider of services." 42 U.S.C. § 1395x(d). 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 at 42 C.F.R. Part 424, subpart P, establish the requirements for a supplier to enroll in the Medicare program. 42 C.F.R. §§ 424.510-424.516; see also 42 U.S.C. § 1395cc(j)(1)(A) (authorizing the Secretary of the U.S. Department of Health and Human Services to establish regulations addressing the enrollment of providers and suppliers in the Medicare program). A supplier who seeks billing privileges under Medicare "must submit enrollment information on the applicable enrollment application." 42 C.F.R. § 424.510(a)(1). "Once the provider or supplier successfully completes the enrollment process ... CMS enrolls the provider or supplier into the Medicare program." Id.; see also 42 C.F.R. § 424.510(d) (listing enrollment requirements). When the contractor approves an enrollment application, it sets the effective date for approval of billing privileges. See Alexander C. Gatzimos, MD, JD, LLC, DAB No. 2730 at 2 (2016). "The effective date of a physician's or physician organization's enrollment in Medicare is 'the later of the date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor or the date [the supplier] first began furnishing services at a new practice location.'" Alexander C. Gatzimos, DAB No. 2730 at 2-3, citing 42 C.F.R. § 424.520(d); see Gaurav Lakhanpal, MD, DAB No. 2951 at 6 (2019)

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("the effective date of ... reassignment of billing privileges is ... the date that [the contractor] received [the] reassignment application that was subsequently approved.").

The Departmental Appeals Board (DAB) has explained that "[t]he governing law on how CMS (and its Medicare contractors) determine the effective date for [suppliers] applying for Medicare billing privileges is set by regulation" at 42 C.F.R. § 424.520(d). Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017). Even though Petitioner argues that she submitted an application to reassign benefits on May 1, 2018 (P. Br. at 1), WPS rejected that application after she did not respond to the development request. Petitioner did not submit an application to reassign benefits that was processed to approval until July 23, 2018. CMS Ex. 2. Therefore, the earliest possible effective date for Petitioner's reassignment of benefits is July 23, 2018, pursuant to 42 C.F.R. § 424.520(d), with billing privileges beginning 30 days earlier on June 23, 2018, pursuant to 42 C.F.R. § 424.521(a)(1). Accordingly, I conclude that, pursuant to 42 C.F.R. § 424.520(d), the effective date of Petitioner's reassignment of benefits is July 23, 2018, with retrospective billing privileges beginning June 23, 2018. See, e.g., Urology Grp. of NJ, LLC, DAB No. 2860 at 7 (2018) ("The governing authority to determine the effective date for reactivation of Petitioner's Medicare billing privileges is 42 C.F.R. § 424.520(d)" (italics omitted).).

Petitioner argues that she is entitled to an earlier effective date for her reassignment of benefits because she "[was] not aware there was a problem with the initial online Application placed with PECOS." P. Br. at 3. Petitioner argues that, on May 1, 2018, her office manager complied with the electronic signature request.9 P. Br. at 2. However, Petitioner submitted a copy of the May 8, 2018 report that shows that her application was pending electronic signatures a week after her office manager purportedly submitted the electronic signatures.10 P. Ex. 1 at 3; P. Br. at 1-2. Further, Petitioner fails to recognize that, based on the evidence she submitted showing that her application remained pending for electronic signatures a full week after her office

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manager purportedly submitted the signatures, it does not appear she had a reasonable basis to believe that "[t]he emailed signature was entered and appeared to go through without any problems and without any indication of difficulty."11 P. Ex. 1 at 3. After Petitioner did not comply with the May 1, 2018 development request within 30 days, WPS rejected her May 1, 2018 reassignment of benefits application on July 5, 2018. P. Exs. 1, 2, 3; see 42 C.F.R. § 424.525(a)(1) (stating that an enrollment application may be rejected if "[t]he prospective provider or supplier fails to furnish complete information on the provider/supplier enrollment application within 30 calendar days from the date of the contractor request for the missing information."). The evidence demonstrates that WPS notified Petitioner that her application was incomplete and that she received this notification. P. Exs. 1-2; CMS Ex. 4 at 1. The evidence also demonstrates that Petitioner was on notice that, a full week after her purported submission of electronic signatures to complete her application, her enrollment application continued to lack the required electronic signatures. CMS Ex. 4 at 1; P. Ex. 1 at 3. And even though Petitioner previously claimed she was "inhibit[ed]" from contacting WPS for updates (CMS Ex. 4 at 1), the evidence demonstrates that WPS had advised Petitioner to click on a hyperlink in the email message or to call 1-866-484-8049 "if [she] require[d] assistance at any point in the process." P. Ex. 2 at 2. While I am not empowered to overturn WPS's determination rejecting Petitioner's May 1, 2018 application, I nonetheless see no error in WPS's processing and rejection of that application. See James Shepard, M.D., DAB No. 2793 at 8 (2017) (stating that 42 C.F.R. § 424.525(d) "plainly prohibits" ALJ review of a rejected application because there are no appeal rights for such a determination); Wishon Radiological Med. Grp., Inc., DAB No. 2941 at 8 (2019) (DAB's statement that it "has made it clear that the effective date cannot be determined by reference to the filing date of an application not subsequently approved by the contractor....").

After being notified on July 5, 2018 of the rejection of her application, Petitioner did not submit another application to reassign her benefits until July 23, 2018. CMS Ex. 2. This application was processed to approval. CMS Ex. 3. Therefore, and pursuant to section 42 C.F.R. § 424.520(d), WPS correctly determined that the effective date of her reassignment of benefits is July 23, 2018, and authorized retrospective billing privileges beginning June 23, 2018, pursuant to 42 C.F.R. § 424.521(a)(1).

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To the extent that Petitioner's request for relief is based on principles of equitable relief, I cannot grant such relief. US Ultrasound, DAB No. 2302 at 8 (2010) ("Neither the ALJ nor the [DAB] is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements."). Petitioner points to no authority by which I may grant her relief from the applicable regulatory requirements, and I have no authority to declare statutes or regulations invalid or ultra vires. 1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) ("An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground ....").

WPS had a legitimate basis to assign a July 23, 2018 effective date for Petitioner's reassignment of benefits to David G. Smithson, MD, PC, with retrospective billing privileges to reassign benefits to that practice, beginning June 23, 2018. 42 C.F.R. §§ 424.520(d), 424.521(a)(1).

V. Conclusion

For the foregoing reasons, I uphold the July 23, 2018 effective date of Petitioner's reassignment of benefits, with retrospective billing privileges beginning June 23, 2018.

• 1. PECOS is the Provider, Enrollment, Chain and Ownership System, which is an internet-based application that enables Medicare providers and suppliers to electronically submit enrollment applications.
• 2. Petitioner alleged in her request for hearing that she filed the application on May 1, 2018, and the Centers for Medicare & Medicaid Services (CMS) did not dispute this claim. Neither party has submitted documentation establishing the date of the application.
• 3. WPS did not provide an explanation for its determination that June 23, 2018, was the effective date of Petitioner's reassignment of benefits. It is apparent that WPS afforded Petitioner an earlier effective date for the reassignment of benefits based on affording her retrospective billing privileges 30 days prior to the July 23, 2018 submission date of the application. In more precise terms, the actual effective date of the reassignment of benefits is July 23, 2018, and retrospective billing privileges (allowing Petitioner to reassign benefits to David G. Smithson, MD, PC) are effective June 23, 2018. See 42 C.F.R. §§ 424.520(d), 424.521(a)(1).
• 4. The legal basis for the requested effective date of April 17, 2018, is unclear, in that Petitioner has not asserted she submitted an application to reassign her benefits on that date. See C.F.R. § 424.520(d).
• 5. In an apparent response to Petitioner's complaint that WPS's May 1, 2018 email message originated from a "do-not-reply" email account (CMS Ex. 4 at 1), WPS noted that the same email message stated the following: "If you require assistance at any point in the process please refer to the link or dial 1-866-484-8049." CMS Ex. 1 at 2; see P. Ex. 2 at 2. WPS also explained that its telephone number is posted on its website. CMS Ex. 1 at 2.
• 6. This case was reassigned to me on March 8, 2019.
• 7. Because a hearing is unnecessary, I need not address whether summary judgment is appropriate.
• 8. Findings of fact and conclusions of law are in italics and bold font.
• 9. The record does not contain documentary evidence or sworn testimony that Petitioner and Dr. Smithson submitted the requested electronic signatures. See Pre-Hearing Order, §§ 4, 8.
• 10. Based on Petitioner's account, it appears that the office manager submitted the electronic signatures on behalf of Petitioner and Dr. Smithson. P. Br. at 2 ("[O]n May 1, 2018, a PECOS Electronic Signature Request was received via email and replied to by Larecia Prilliman using the link at the bottom of [the] email ...."). Petitioner is required to sign her own enrollment application and cannot delegate this action to another person. See CMS Ex. 2 at 3 (Form CMS-855R, Section 6, Certification Statements and Signatures) (requiring the signatory to agree to the following: "Under penalty of perjury, I, the undersigned, certify that the above information is true, accurate and complete.").
• 11. Petitioner's claim there was no indication of any problems with the application is unsupported by the evidence she submitted in support of her brief, namely her application data report that she accessed on May 8, 2018. P. Ex. 1 at 3. That application data report, dated "05/08/2018," informed Petitioner that "[t]his is a report of your current Medicare application in PECOS." P. Ex. 1 at 3. The header at the top of the page states: "PENDING E-SIGNATURES MEDICARE APPLICATION." Additionally, the "enrollment status" is listed as "PENDING E-SIGNATURES." P. Ex. 1 at 3. Further, the sections for the two authorized signers, Petitioner and Dr. Smithson, separately list a status of "Pending." P. Ex. 1 at 3.