Interventional Pain Center, PLLC, DAB CR5421 (2019)

DECISION

Petitioner, Interventional Pain Center, PLLC, is an ambulatory surgical center, located in Warren, Michigan. The Centers for Medicare & Medicaid Services (CMS) approved its application to participate in the Medicare program, effective January 10, 2017. Petitioner now challenges that effective date, and CMS has moved for summary judgment.

I grant CMS's motion. The undisputed evidence establishes that Petitioner first met all Medicare participation requirements on January 10, 2017, which is, therefore, the correct effective date of its enrollment.

Background

In a letter dated February 14, 2017, CMS advised Petitioner that it approved its request to participate in the Medicare program with a January 10, 2017 effective date of coverage. CMS Exhibit (Ex.) 13. Petitioner sought reconsideration, asking that its effective date be changed to February 9, 2016, the date it "was approved for operations by the State of Michigan." CMS Ex. 1. In a reconsidered determination, dated March 1, 2017, CMS affirmed the January 10, 2017 effective date. CMS Ex. 2.

Petitioner appealed, and CMS now moves for summary judgment.

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With its motion and brief, CMS submits 13 exhibits (CMS Exs. 1-13).  With its response (P. Br.), Petitioner submits four exhibits (P. Exs. A-D).

Discussion

CMS is entitled to summary judgment because the undisputed evidence establishes that Petitioner first met all Medicare participation requirements on January 10, 2017, which is, therefore, the correct effective date of its enrollment.1

Program rules. Medicare will pay for services furnished in connection with certain surgical procedures performed at a participating ambulatory surgical center. Social Security Act § 1832(a)(2)(F). An ambulatory surgical center is a distinct entity that 1) operates exclusively for the purpose of providing surgical services to patients not requiring hospitalization; 2) has an agreement to participate in the Medicare program; and 3) meets certain other conditions set forth in 42 C.F.R. Part 416, subparts B and C. 42 C.F.R. §§ 416.2, 416.25.

An ambulatory surgical center may qualify for a participation agreement in one of two ways: 1) based on a survey by the state survey agency, CMS finds it in compliance with conditions for coverage; or 2) CMS "deems" it to be in compliance with conditions for coverage based on its accreditation by a national accrediting body that CMS has determined provides reasonable assurance that the conditions are met. 2 42 C.F.R. § 416.26(a) and (b). The effective date may not be earlier than "the latest of the dates on which CMS determines that each applicable Federal requirement is met." 42 C.F.R. § 489.13(b). If, on the date of the survey, all health and safety standards are met, the effective date is the date the survey is completed.  42 C.F.R. § 489.13(b). On the other hand, if all health and safety standards are not met on the date of the survey (as occurred here), the effective date is the date on which the supplier meets all conditions for coverage and (as in this case) the CMS-approved accreditation organization program issues a positive accreditation decision after it receives an acceptable plan of correction for the lower-level deficiencies. 42 C.F.R. § 489.13(c)(2).3

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The date Petitioner, Interventional Pain Center, first met all Medicare participation requirements. Summary judgment is appropriate in this case, because no material facts are in dispute, and CMS is entitled to judgment as a matter of law. See 1866ICPayday.com, LLC, DAB No. 2289 at 2-3 (2009); Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009), and cases cited therein.

On February 9, 2016, the State of Michigan issued to Petitioner a "Project Closure Certificate," approving for occupancy the center's physical plant. CMS Ex. 5. Immediately thereafter, Petitioner apparently began providing services, but, inasmuch as it wasn't enrolled, Medicare would not pay the bills it submitted. P. Ex. A at 2 (Bothra Decl. ¶ 10).  Although Petitioner points to this as evidence that the state promised it the February 9 effective date, as discussed below, this state approval says nothing about Medicare enrollment, and Petitioner could not reasonably have relied on it or any other purported "assurances" from the state.

To enroll in Medicare, a prospective supplier (which includes an ambulatory surgical center) must first complete and submit an enrollment application. 42 C.F.R. § 424.510(d)(1). Here, Petitioner applied for enrollment on April 29, 2016. CMS Ex. 6 at 1.4 The Medicare contractor asked for additional information and changes, which Petitioner provided on May 24, 2016. CMS Ex. 7.

The Medicare contractor reviewed Petitioner's enrollment application and, in a June 22, 2016 letter to the State Division of Licensing and Certification, recommended its approval. CMS Ex. 8. On the same day, the contractor advised Petitioner that it had forwarded the application to both the state agency and to the regional office of CMS. The letter explained that the "next step" in the process would be "a survey or site visit," conducted by a state survey agency or a CMS-approved accrediting organization, to ensure that the surgical center complied with required conditions of participation. When the CMS regional office confirmed that the conditions were met, the Medicare contractor would advise Petitioner of its decision. CMS Ex. 9; see 42 C.F.R. § 416.26.

Petitioner arranged for its survey to be conducted by The Joint Commission, an approved accrediting organization. P. Ex. A at 2 (Bothra Decl. ¶ 5); P. Ex. C. The Joint Commission surveyed from October 18-19, 2016, but found condition-level deficiencies and recommended denial of accreditation. P. Ex. A at 2 (Bothra Decl. ¶ 6); P. Ex. D.

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Petitioner apparently corrected its deficiencies and arranged for another survey, to be performed by a different accrediting organization, the American Osteopathic Association for Accreditation. On December 28-29, 2016, this accrediting organization surveyed the surgical center. CMS Ex. 10; P. Ex. A at 2 (¶¶ 6, 7). The surveyors found no conditions out, but the surgical center did not meet multiple standards. CMS Ex. 10 at 4-8.

Petitioner submitted its plan of correction on January 10, 2017. CMS Ex. 11. The Accreditation Program reviewed the submission and granted it full accreditation, effective January 10, 2017. In a letter dated January 17, 2017, the Accreditation Program advised Petitioner that it granted full accreditation and that CMS would review the survey findings as part of its Medicare certification process; when all requirements were met, the CMS regional office would issue a certification number. CMS Ex. 12 at 1; see CMS Ex. 10 at 3.

In a letter dated February 14, 2017, CMS advised Petitioner that its request for approval was granted based on its accreditation, with a January 10, 2017 effective date of coverage. CMS Ex. 13.

Thus, January 10, 2017, is the date CMS received an acceptable plan of correction and is therefore the earliest possible effective date for Petitioner's Medicare enrollment.

Petitioner's arguments. Petitioner, however, claims that the State of Michigan assured it that its effective date for coverage would be February 9, 2016, the date it "was approved for operations." P. Ex. B. There are two problems with Petitioner's argument: first, Petitioner cites the unsupported claim it made in its reconsideration request, but submits no evidence that the State of Michigan made any such assurances. P. Ex. B. No correspondence from the state to Petitioner suggests any promise of Medicare enrollment. In a letter dated January 17, 2017, the Michigan Department of Health and Human Services confirms that Petitioner completed its project "to initiate a new freestanding surgical outpatient facility" and the state would "show this project operational . . . and 100% complete as of February 9, 2016." CMS Ex. 1 at 2. The letter says nothing about Medicare enrollment.

Moreover, even if the state had misled Petitioner (which it did not), Petitioner would not be entitled to an earlier effective date. The regulations are explicit, and the Michigan state agency has no authority to change them – by providing misinformation or otherwise. See Heckler v. Cmty Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 63-64 (1984) (holding that those who participate in the Medicare program are supposed to understand its rules); Hartford HealthCare at Home, Inc., DAB No. 2787 at 7-8 (2017) (holding that purportedly misleading language in a state agency's letters was not material where the regulations vest the Secretary and CMS, not the state agency, with the authority to impose remedies).

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Petitioner also complains that, after the October survey, The Joint Commission "could not come back out for six (6) months to follow up." P. Ex. A at 2 (Bothra Decl. ¶ 6). In fact, Petitioner managed to arrange a second survey (albeit by a different accrediting agency) two months after its first failed survey, which is not an unreasonable delay. In any event, I have no authority to review survey timing. See 42 C.F.R. §§ 498.3(b) and 498.3(d)(15).

Conclusion

CMS is entitled to summary judgment because the undisputed evidence establishes that Petitioner first met all Medicare participation requirements on January 10, 2017, and CMS therefore properly approved its Medicare enrollment effective that date. For that reason, I grant CMS's motion for summary judgment.

• 1. I make this one finding of fact/conclusion of law.
• 2. A condition for coverage represents a broad category of services. Each condition is contained in a single regulation, which is divided into subparts called standards.
• 3. I have simplified this rather detailed regulation, referring solely to those provisions that apply here.
• 4. The date of filing is not obvious. Vertically along the left margin of the application is a date stamp: "16120." Medicare contractors stamp paper applications with a "Julian date stamp," which counts the days of the year consecutively. The first two digits indicate the year – 2016. The next three digits indicate the date – the 120^th day of 2016 or April 29, 2016.