New York Retina Consultants, PLLC, DAB CR5438 (2019)

DECISION

The effective date of Medicare enrollment and billing privileges of Petitioner is September 28, 2017, with retrospective billing privileges beginning August 29, 2017.

I. Background and Procedural History

National Government Services, a Medicare Administrative Contractor (MAC), notified Petitioner by letter dated December 8, 2017, that Petitioner's enrollment application was approved effective October 9, 2017. Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 44-45.

Petitioner requested a reconsidered determination by letter dated March 20, 2018. Petitioner requested an effective date of Medicare enrollment and billing privileges of January 3, 2017. CMS Ex. 1 at 49-53.

On April 10, 2018, the MAC issued a reconsidered determination. The MAC correctly identified that the request for reconsideration was not timely filed. However, the MAC exercised its discretion and conducted reconsideration. CMS Ex. 1 at 1, 5-6. The MAC identified a processing error and, on that basis, determined it was appropriate to grant Petitioner an enrollment effective date of August 29, 2017. CMS Ex. 1 at 5-6.

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Petitioner requested a hearing before an administrative law judge (ALJ) on June 11, 2018 (RFH). The case was assigned to me and an Acknowledgment and Prehearing Order (Prehearing Order) issued on July 13, 2018.

CMS did not request ALJ review of the reconsidered determination.

CMS filed a motion to dismiss or, in the alternative, for summary judgment1 (CMS Br.) with CMS Ex. 1 on August 14, 2018. Petitioner filed a response in opposition on September 24, 2018 (P. Br.), with no exhibits. CMS filed a reply on October 9, 2018. Petitioner did not object to my consideration of CMS Ex. 1 and it is admitted as evidence.

II. Discussion

A. Applicable Law

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.2 Act §§ 1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395u (h)(1)). Administration of the Part B program is through the MACs. Act § 1842(a) (42 U.S.C. § 1395u(a)).

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The Act requires that the Secretary of Health and Human Services (the Secretary) 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)).

Pursuant to 42 C.F.R. § 424.505, a provider or supplier must be enrolled in the Medicare program and be issued a billing number to have billing privileges and to be eligible to receive payment for services rendered to a Medicare-eligible beneficiary. The effective date of enrollment in Medicare of a physician, nonphysician practitioner, and physician and nonphysician practitioner organizations is governed by 42 C.F.R. § 424.520(d). The effective date of enrollment for a physician, nonphysician practitioner, or practitioner or non-practitioner organization may only be the later of two dates: the date of receipt of the application for enrollment that was subsequently approved by a Medicare contractor charged with reviewing the application on behalf of CMS; or the date when the physician or nonphysician practitioner first began providing services at a new practice location. 42 C.F.R. § 424.520(d).An enrolled physician, nonphysician practitioner, or physician practitioner organization may retrospectively bill Medicare for services provided to Medicare-eligible beneficiaries up to 30 days prior to the effective date of enrollment, if circumstances precluded enrollment before the services were provided. Retrospective billing for up to 90 days prior to the effective date of enrollment is permitted only in case of a disaster declaration by the President. 42 C.F.R. § 424.521.

The Secretary has issued regulations that establish the right to a hearing and judicial review of certain enrollment determinations. Act § 1866(j) (42 U.S.C. § 1395cc(j)). Pursuant to section 1866(h)(1) and (j)(8), a provider or 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 provider'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. Issues

Whether summary judgment is appropriate, and

Whether Petitioner's effective date for Medicare enrollment and billing privileges is January 3, 2017 as alleged by Petitioner, September 28, 2017 as alleged by CMS in its brief, or August 29, 2017 as determined on reconsideration.

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C. Findings of Fact, Conclusions of Law and Analysis

My conclusions of law are set forth in bold followed the undisputed facts and my analysis.

1. Summary judgment is appropriate.

Petitioner has a right to a hearing and judicial review. A hearing on the record before an ALJ is required under the Act. Act §§ 205(b), 1866(h)(1), (j); 42 C.F.R. §§ 498.3(b)(15), 498.5(l); Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748‑51 (6th Cir. 2004). A party may waive appearance at an oral hearing but must do so affirmatively in writing. 42 C.F.R. § 498.66. Petitioner has not waived oral hearing.

CMS has filed a motion for summary judgment. Summary judgment is not automatic but is limited to certain specific conditions. The procedures applicable to the adjudication of this case are at 42 C.F.R. pt. 498. The regulations do not establish or recognize a summary judgment procedure. However, the Departmental Appeals Board (Board) has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498. See, e.g., Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997). The Board has also recognized that the Federal Rules of Civil Procedure do not apply in administrative adjudications such as this, but the Board has accepted that Fed. R. Civ. P. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate. Furthermore, a summary judgment procedure was adopted as a matter of judicial economy within my authority to regulate the course of proceedings and made available to the parties in the litigation of this case by my Prehearing Order. The parties were given notice by the Prehearing Order that summary judgment is an available procedural device and that the law as it has developed related to Fed. R. Civ. P. 56 will be applied. Prehearing Order ¶¶ II.D. & G.

Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law. In determining whether there are genuine issues of material fact for trial, the reviewer must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party's favor. The party requesting summary judgment bears the burden of showing that there are no genuine issues of material fact for trial and/or that it is entitled to judgment as a matter of law. Generally, the non-movant may not defeat an adequately supported summary judgment motion by relying upon the denials in its pleadings or briefs but must furnish evidence of a dispute concerning a material fact, i.e., a fact that would affect the outcome of the case if proven. Mission Hosp. Reg'l Med. Ctr., DAB No. 2459 at 5 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 5 (2012) (and cases cited therein); Senior Rehab. & Skilled

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Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The standard for deciding a case on summary judgment and an ALJ's decision-making in deciding a summary judgment motion differs from that used in resolving a case after a hearing. On summary judgment, the ALJ does not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence, as would be done when finding facts after a hearing on the record. Rather, on summary judgment, the ALJ construes the evidence in a light most favorable to the non-movant and avoids deciding which version of the facts is more likely true. Holy Cross Vill. at Notre Dame, Inc., DAB No. 2291 at 5 (2009). The Board also has recognized that on summary judgment it is appropriate for the ALJ to consider whether a rational trier of fact could find that the party's evidence would be sufficient to meet that party's evidentiary burden. Dumas Nursing & Rehab., L.P., DAB No. 2347 at 5 (2010). The Secretary has not provided in 42 C.F.R. pt. 498 for the allocation of the burden of persuasion or the quantum of evidence required to satisfy the burden. However, the Board has provided some persuasive analysis regarding the allocation of the burden of persuasion in cases subject to 42 C.F.R. pt. 498. Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff'd, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App'x 181 (6th Cir. 2005).

In this case, I conclude that Petitioner has failed to show that there is a genuine dispute as to any material fact related to the determination of the effective date of Petitioner's enrollment in Medicare. The date the MAC received an application it could process to approval is not disputed and the effective date is determined by application of the regulation to that undisputed fact. CMS did not request review regarding the effective date of enrollment determined on reconsideration. Therefore, there is no genuine dispute by CMS as to the effective date of enrollment determined by the MAC on reconsideration. Accordingly, I conclude that summary judgment is appropriate.

2. Pursuant to 42 C.F.R. § 424.520(d), Petitioner's effective date of Medicare enrollment is the date of receipt by the MAC of a Medicare enrollment application (CMS-855B) from Petitioner that the MAC could process to approval.

3. The effective date of Petitioner's enrollment determined on reconsideration was August 29, 2017, CMS did not request review as to that determination and has thereby waived any challenge to that date.

4. As a matter of law, the effective date of Petitioner's Medicare enrollment was September 28, 2017, the date the MAC received an application it could process to approval.

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5. Pursuant to 42 C.F.R. § 424.521(a)(1), Petitioner is authorized to bill Medicare for services provided to Medicare-eligible beneficiaries up to 30 days prior to its effective date of enrollment, that is, beginning on August 29, 2017.

a. Undisputed Facts

The following facts are undisputed or are accepted as true as averred by Petitioner for purposes of summary judgment.

Petitioner's physicians began seeing patients on or about January 1, 2017. RFH; CMS Ex. 1 at 49.

The MAC received two Medicare enrollment applications (CMS-855B) from Petitioner, one on January 6, 2017 and one on July 10, 2017. Both applications were rejected by the MAC because Petitioner failed to respond to requests for additional information. CMS Ex. 1 at 5, 7-11, 14-20, 21-35.

The MAC received a third application from Petitioner on September 28, 2017. There is no dispute that the MAC processed the third application to approval. There is also no dispute that the MAC's initial decision determined that the effective date of Petitioner's enrollment was October 9, 2017. CMS Ex. 1 at 5, 37-46.

The MAC modified Petitioner's effective date of Medicare enrollment to August 29, 2017, in the reconsidered determination dated April 10, 2018. CMS Ex. 1 at 5-6.

Petitioner timely requested ALJ review of the reconsidered determination.

CMS did not request ALJ review of the reconsidered determination.

b. Analysis

The regulations controlling the effective date of enrollment of a physician practitioner organization and the application of those regulations are clear. The effective date of enrollment in Medicare of a physician, nonphysician practitioner, and physician and nonphysician practitioner organizations is governed by 42 C.F.R. § 424.520(d). The effective date of enrollment for a physician or physician practitioner organization may only be the later of two dates: (1) the date when the physician filed an application for enrollment that was subsequently approved by a MAC charged with reviewing the application on behalf of CMS; or (2) the date when the physician first began providing services at a new practice location. 42 C.F.R. § 424.520(d). The date of filing of the enrollment application is the date on which the Medicare contractor receives a signed enrollment application that the MAC is able to process to approval. 42 C.F.R.

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§ 424.510(d)(1); 73 Fed. Reg. 69,725, 69,769 (Nov. 19, 2008); Alexander C. Gatzimos, MD, JD, LLC, DAB No. 2730 at 1 (2016). The burden is on Petitioner, not the government, to demonstrate that the MAC or CMS received the requisite enrollment forms and that Petitioner met all enrollment requirements. 42 C.F.R. § 424.545(c). An enrolled physician or physician practitioner organization may retrospectively bill Medicare for services provided to Medicare-eligible beneficiaries up to 30 days prior to the effective date of enrollment, if circumstances precluded enrollment before the services were provided. 42 C.F.R. § 424.521(a)(1).

Petitioner requests that its effective date of enrollment be changed to January 3, 2017, which is on or about when its physicians first saw patients. P. Br.; CMS Ex. 1 at 49. However, it is undisputed that the MAC did not receive a Medicare enrollment application from Petitioner that it could process to completion until September 28, 2017. The regulations allow no discretion but require that the September 28, 2017 date of receipt is the effective date of Petitioner's enrollment in this case. The regulation is clear that the effective date is the later of the date the application processed to approval is received or the date patients were first seen. 42 C.F.R. § 424.520(d). In this case, there is no dispute Petitioner's physicians first saw patients about January 3, 2017, but it was much later, on September 28, 2017, that the MAC received the application it approved. Although Petitioner did submit two prior applications, both were rejected because Petitioner failed to timely provide requested information to the MAC. Petitioner has no right to review of the determination to reject Petitioner's earlier actions. 42 C.F.R. § 424.525(d). September 28, 2017 is Petitioner's effective date of Medicare enrollment as that date is without question later than January 3, 2017. Based on an effective date of Medicare enrollment of September 28, 2017, the first day of the 30-day period of retrospective billing privileges is August 29, 2017, pursuant to 42 C.F.R. § 424.521(a)(1).

The reconsidered determination states that the effective date of Petitioner's enrollment is August 29, 2017. CMS Ex. 1 at 5-6. CMS argues the date is in error and reflects a mistake as to the difference between the effective date of enrollment and the first day of the retrospective period for billing. CMS Br. at 6 n.1. It is unlikely that the MAC was confused about the difference as the reconsidered determination discusses the difference in significant detail. CMS Ex. 1 at 2-3. Further, CMS failed to exercise its right to request ALJ review of the reconsidered determination pursuant to 42 C.F.R. § 498.5(l)(2). Therefore, CMS waived any right to challenge the reconsidered determination, even in the guise of a request for correction of a possible clerical error. Nevertheless, I conclude that the August 29, 2017 effective date determined on reconsideration may not be upheld as it is contrary to the regulations. The regulations for determining the effective date of Medicare enrollment and the first day of the period of retrospective payment are unambiguous and clearly do not permit the determination of the dates in any manner other than that established by the regulations. 42 C.F.R. §§ 424.520(d), 424.521(a). I am bound to follow the Act and regulations and have no authority to declare statutes or regulations invalid or ultra vires. 1866ICPayday.com,

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L.L.C., DAB No. 2289 at 14 (2009). I conclude that the reconsidered determination that the effective date of Petitioner's enrollment in Medicare was August 29, 2017, violates the regulations and may not be enforced.

Accordingly, I conclude that the effective date of Petitioner's Medicare enrollment was September 28, 2017, the date the MAC received an application it could process to approval. The period for retrospective billing began August 29, 2017, 30 days prior to the effective date of enrollment.

To the extent that Petitioner's arguments may be construed to be a request for equitable relief, I have no authority to grant Petitioner equitable relief in the form of an earlier effective date of enrollment, even if I were inclined to do so. US Ultrasound, DAB No. 2302 at 8 (2010).

III. Conclusion

For the foregoing reasons, Petitioner's effective date of enrollment is September 28, 2017, with retrospective billing privileges beginning August 29, 2017.

• 1. I conclude that resolving this case on summary judgment is appropriate. The basis for dismissal advocated by CMS is that the request for hearing lacks specificity required by 42 C.F.R. § 498.40(b). Petitioner's request for hearing is minimally sufficient and dismissal is not appropriate. The 2017 revision of the Code of Federal Regulations (C.F.R.) is cited unless otherwise stated.
• 2. Petitioner, a physician practitioner organization, is a "supplier" under the Act and the regulations. A "supplier" furnishes services under Medicare and the term supplier applies to physicians or other practitioners and facilities that are not included within the definition of the phrase "provider of services." Act § 1861(d) (42 U.S.C. § 1395x(d)). A "provider of services," commonly shortened to "provider," includes hospitals, critical access hospitals, skilled nursing facilities, comprehensive outpatient rehabilitation facilities, home health agencies, hospice programs, and a fund as described in sections 1814(g) and 1835(e) of the Act. Act § 1861(u) (42 U.S.C. § 1395x(u)). The distinction between providers and suppliers is important because they are treated differently under the Act for some purposes.