Onajefe Nelson-Twakor, M.D., DAB CR5532 (2020)

DECISION

I affirm the determination of Palmetto GBA (Palmetto), a contractor for the Centers for Medicare & Medicaid Services (CMS), that the effective date for Petitioner’s Medicare billing privileges and the reassignment of Medicare benefits to Petitioner’s practice is December 6, 2018, with retrospective billing privileges commencing November 6, 2018.

I. Procedural History

On April 20, 2019, Palmetto issued a reconsidered determination related to the effective date of Petitioner’s Medicare billing privileges and the reassignment of Medicare benefits from Petitioner to Petitioner’s practice. Petitioner timely requested an ALJ hearing (Hearing Request) to dispute the reconsidered determination. On June 28, 2019, the Civil Remedies Division (CRD) issued an acknowledgment of the hearing request and my Standing Prehearing Order. In response, CMS filed a motion for summary judgment with a brief in support of the motion (CMS Br.) and 11 exhibits (CMS Exs. 1-11). Petitioner then filed a brief (P. Br.) and four exhibits (P. Exs. 1-4).

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II. Decision on the Written Record

I admit all of the proposed exhibits into the record without objection. Standing Prehearing Order ¶ 10; CRD Procedures § 14(e).

The Standing Prehearing Order advised the parties to submit written direct testimony for each witness and that an in-person hearing would only be held if a party requested to cross-examine a witness. Standing Prehearing Order ¶¶ 10-13; CRDP §§ 16(b), 19(b). Neither party has offered any written direct testimony. Therefore, I issue this decision based on the written record. Standing Prehearing Order ¶ 14; CRDP § 19(d).

III. Issue

Whether CMS had a legitimate basis to assign December 6, 2019, as the effective date for the Petitioner’s Medicare billing privileges and reassignment of Medicare benefits.

IV. Jurisdiction

I have jurisdiction to hear and decide this case. 42 C.F.R §§ 498.3(b)(15), 498.5(l)(2); see also 42 U.S.C. § 1395cc(j)(8).

V. Findings of Fact and Conclusions of Law

1. In an August 9, 2016 notice, CMS contractor Cahaba Government Benefit Administrators, LLC (Cahaba) stated that Petitioner’s Medicare enrollment application and application for the reassignment of benefits was approved.  The notice gave Petitioner’s name as the “Provider Name” and Georgia Heart Physicians, LLC as the “Group Name.”  CMS Ex. 9 at 1.

2. In February 2017, Cahaba was still the CMS contractor that handled Medicare Part B claims for Georgia; however, by June 2018, Palmetto had become the Medicare Part B contractor.  CMS Ex. 10 at 1-2; CMS Ex. 11 at 1, 3.

3. By letter dated August 22, 2018, Petitioner wrote to “Georgia Medicare Enrollment” and asked for a Georgia Medicare number because, until August 22, 2018, she was with Georgia Heart Physicians, LLC, but had opened her own practice named Twin Arrhythmia Group, LLC.  CMS Ex. 6; P. Ex. 1.

4. On October 9, 2018, Petitioner mailed a Medicare enrollment application to Cahaba.  CMS Ex. 7 at 2; P. Ex. 2 at 2; P. Br. at 3.

5. On December 6, 2018, Palmetto received Petitioner’s CMS-855I and CMS-855R enrollment applications.  CMS Ex. 7 at 1; P. Ex. 2 at 1; see also CMS Ex. 1 at 1.

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6. On January 12, 2019, Palmetto informed Petitioner that her change of information request was approved.  It provided “Medicare Enrollment Information,” including Petitioner’s name, the practice location of Twin Arrhythmia Group, LLC, and an effective date of November 6, 2018.  CMS Ex. 2 at 1; P. Ex. 3 at 1.

7. In a January 16, 2019 letter, Petitioner asked Palmetto to “reconsider the effective date of change for [Petitioner’s] participation.  The correct effective date should be September 1, 2018.”  CMS Ex. 3 at 1; P. Ex. 4.

8. In a March 14, 2019 letter to Palmetto, Petitioner stated that she had started a solo practice in Macon, Georgia, applied for both personal and group Provider Transaction Access Numbers (PTANs), received a personal PTAN, but had not yet received a group PTAN.  CMS Ex. 4.

9. In an April 20, 2019 reconsidered determination, Palmetto upheld the November 6, 2018 effective date that it had assigned to Petitioner.  The reconsidered determination stated that Palmetto received CMS-855I and CMS-855R applications from Petitioner on December 6, 2018.  Further, Palmetto completed review of the CMS-855I application and the reassignment application issuing the PTAN G087051398 with an effective date of November 6, 2018, which was 30 days before the December 6, 2018 receipt date.  CMS Ex. 1 at 1-2.

10. In a May 22, 2019 initial determination, Palmetto stated that the initial Medicare enrollment for Twin Arrhythmia Group, LLC, was approved and that the effective date of billing privileges was November 6, 2018.  CMS Ex. 5 at 1.

11. The effective date of Petitioner’s Medicare billing privileges is December 6, 2018, the date Palmetto received Petitioner’s CMS-855I application, and Petitioner’s retrospective billing privileges commenced 30 days before the effective date of billing privileges.  42 C.F.R. §§ 424.520(d), 424.521.  

VI. Analysis

The Social Security Act (Act) authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations governing the enrollment process for providers and suppliers. 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. 42 U.S.C. § 1395x(d); see also 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 term “Enroll/Enrollment means the process that Medicare uses to establish eligibility to submit claims for Medicare covered items

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and services, and the process that Medicare uses to establish eligibility to order or certify Medicare covered items and services.  The process includes . . . [i]dentification and confirmation of the . . . supplier’s practice location(s) and owners.”  42 C.F.R. § 424.502 (emphasis in original).  A supplier seeking Medicare billing privileges must “submit enrollment information on the applicable enrollment application.  Once the . . . supplier successfully completes the enrollment process . . . CMS enrolls the . . . supplier into the Medicare program.”  42 C.F.R. § 424.510(a).  After enrollment, physicians must report a change in their practice location within 30 days.  42 C.F.R. § 424.516(d)(1)(iii).

When enrolling a physician, CMS establishes an effective date for billing privileges.  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” 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).  These effective date rules also apply to the effective date of the reassignment of Medicare benefits.  Gaurav Lakhanpal, MD, DAB No. 2951 at 6 (2019).

When CMS assigns an effective date, CMS may permit a retrospective billing period of up to 30 days.  42 C.F.R. § 424.521.

In the present case, there is no dispute that Palmetto received Petitioner’s enrollment and reassignment applications on December 6, 2018.  CMS Ex. 7 at 1; CMS Ex. 1 at 1; P. Br. at 1.  Therefore, Palmetto properly established December 6, 2018, as the effective date for Petitioner’s billing privileges and for the reassignment of her Medicare benefits.  Further, Palmetto properly exercised its authority to permit a 30-day retrospective billing period starting on November 6, 2018.

In her hearing request, Petitioner stated that she wanted a September 1, 2018 effective date because she submitted letters and CMS-855I and CMS-855R applications in August 2018.  Petitioner contacted CMS, but CMS indicated that there was a six to seven week backlog to process enrollment applications.  In September 2018, Petitioner called again and was “told only the letter was received/not the application forms 855I and 855R.”  Petitioner asserted that she submitted multiple CMS-855I and CMS-855R application forms between August and December 2018.  Petitioner stated that she was already enrolled in the Medicare program with another medical group, but then moved locations to open her own solo practice.  Petitioner posited that “All I was doing was changing my location address, [r]eassigning benefits and filing for a new group PTAN.”

In her prehearing brief, Petitioner also asserted that she submitted CMS-855I and CMS-855R applications to Palmetto in August 2018, and again to Cahaba in October 2018.  P. Br. at 1.  Petitioner acknowledged that she sent the October application incorrectly to

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Cahaba, but questions why it took so long for Palmetto to receive it.  P. Br. at 3.  She also indicated that she submitted the applications relying on the CMS contractors to timely process those applications.  P. Br. at 4.  Finally, Petitioner contended that she submitted both individual and group enrollment applications in August 2018, but did not submit a group enrollment application afterward and, “[y]et, CMS ultimately approved her group application, which must have been based on her submission in August because that was the only time she submitted a group Medicare enrollment application.”  P. Br. at 3.

Unfortunately, the record does not contain a copy of any applications that may have been submitted in August of 2018.  Further, the letter that purportedly accompanied the applications did not reference an application or the name of the contractor to which it had been sent.  CMS Ex. 6.  The record is not clear as to the submission of any enrollment applications other than the applications Petitioner mailed on October 9, 2018, which were ultimately processed to approval.  CMS Exs. 7 at 1; 1 at 1.  Further, the record does not establish that these applications were received by a Medicare contractor before December 6, 2018.  CMS Ex. 7.  Therefore, the record only supports an effective date of December 6, 2018.  42 C.F.R. § 424.520(d); 73 Fed. Reg. at 69,769.

To the extent that Petitioner requested an earlier effective date based on Petitioner’s stated communications with CMS contractor personnel, or the lengthy delay in receipt of the enrollment and reassignment applications, I do not have authority to provide equitable relief based on principles of fairness or equitable estoppel, and thus cannot change Petitioners’ effective date for those reasons.  US Ultrasound, DAB No. 2302 at 8 (2010) (“[n]either the ALJ nor the [Departmental Appeals] Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).

VII. Conclusion

I affirm CMS’s determination that Petitioners’ effective date for Medicare billing privileges and the reassignment Medicare benefits is December 6, 2018, with a retrospective billing period commencing on November 6, 2018.