Bradley J. Blakley, M.D., DAB CR5652 (2020)

DECISION

Petitioner, Bradley J. Blakley, M.D., is a physician practicing in Yakima, Washington.  He applied to enroll in the Medicare program and to reassign his billing privileges.  The Centers for Medicare & Medicaid Services (CMS) granted his applications with a retrospective billing date of August 8, 2017 (and, by inference, an effective date of September 7, 2017).  Petitioner now challenges that effective date.

Because Petitioner filed his subsequently-approved enrollment application on September 7, 2017, I find that September 7 is the correct effective date of his enrollment.  Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 (2019); Urology Grp. of NJ, LLC, DAB No. 2860 (2018); Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017), aff’d sub nom. Goffney v. Azar, No. CV 17-8032 MRW (C.D. Cal. Sept. 25, 2019).

Background

In a letter dated October 25, 2017, the Medicare contractor, Noridian Healthcare Solutions, advised Petitioner Blakley that it approved his Medicare enrollment with an “effective date” of August 8, 2017.  CMS Ex. 11.  In fact, as explained below, the

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contractor was granting Petitioner a billing date of August 8, 2017; the effective date of Petitioner’s enrollment was September 7, 2017 (see discussion below).  Petitioner sought reconsideration, asking that the effective date of his enrollment be changed to July 1, 2017.  CMS Ex. 12.  In a reconsidered determination, dated November 6, 2017, the contractor denied Petitioner an earlier effective date, concluding that September 7 was the correct effective date, with a retrospective billing date 30 days prior (August 8).  CMS Ex. 13.

Petitioner appealed.

Although CMS has moved for summary judgment, I find that this matter may be decided on the written record, without considering whether the standards for summary judgment are satisfied.  In my initial order, I instructed the parties to list their proposed witnesses (if any) and to submit written direct testimony for each witness.  Acknowledgment and Pre-hearing Order at 3, 5 (¶¶ 4, 8) (December 21, 2017).  I also directed each party to state, affirmatively, whether it intended to cross-examine any proposed witness.  Order at 5 (¶ 9).  An in-person hearing is necessary “only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine.”  Order at 5 (¶ 10).  CMS lists no witnesses.  For his part, Petitioner lists one witness, Melissa Fielder, and proffers her written testimony.  CMS has not asked to cross-examine Petitioner’s witness.  An in-person hearing would therefore serve no purpose, and I may decide the case based on the written record.

With its motion and brief, CMS submits 14 exhibits (CMS Exs. 1-14).  Petitioner submits one exhibit, the written declaration of Melissa Fielder (P. Ex. 1).  In the absence of any objections, I admit into evidence CMS Exs. 1-14 and P. Ex. 1.

Discussion

Petitioner filed his subsequently-approved applications on September 7, 2017, and his Medicare enrollment can be no earlier than that date.  42 C.F.R. § 424.520(d).1

Enrollment.  Petitioner Blakley participates in the Medicare program as a “supplier” of services.  Social Security Act § 1861(d); 42 C.F.R. § 498.2.  To receive Medicare payments for the services it furnishes to program beneficiaries, a prospective supplier must enroll in the program.  42 C.F.R. § 424.505.  “Enrollment” is the process by which CMS and its contractors: 1) identify the prospective supplier; 2) validate the supplier’s eligibility to provide items or services to Medicare beneficiaries; 3) identify and confirm

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a supplier’s owners and practice location; and 4) grant the supplier Medicare billing privileges.  42 C.F.R. § 424.502.

To enroll, a prospective supplier must complete and submit an enrollment application.  42 C.F.R. §§ 424.510(d)(1), 424.515(a).  An enrollment application is either a CMS-approved paper application or an electronic process approved by the Office of Management and Budget.  42 C.F.R. § 424.502.2  When CMS determines that a prospective supplier meets the applicable enrollment requirements, it grants Medicare billing privileges, which means that the supplier can submit claims and receive payments from Medicare for covered services provided to program beneficiaries.  The effective date for its billing privileges “is the later of the date of filing” a subsequently-approved enrollment application or “[t]he date that the supplier first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d) (emphasis added).

If a physician meets all program requirements, CMS may allow it to bill retrospectively for up to 30 days prior to the effective date “if circumstances precluded enrollment in advance of providing services to Medicare beneficiaries . . . .”  42 C.F.R. § 424.521(a)(1).

Some Medicare contractors have created confusion because they are inclined to conflate the effective date with the retrospective billing date, as the contractor did in this case.  CMS Ex. 11.  The distinction is important; I have the authority to review “[t]he effective date of . . . supplier approval.”  42 C.F.R. § 498.3(b)(15).  But nothing in the regulations gives me the authority to review CMS’s determinations regarding retrospective billing.  Fortunately, the reconsidered determination effectively corrects the error, finding that Petitioner filed his enrollment applications on September 7, 2017, and that they were eligible for 30-days retrospective billing under section 424.521.  CMS Ex. 13 at 2.

Here, on September 7, 2017, the Medicare contractor received Petitioner’s enrollment applications (CMS 855I and CMS 855R), which the contractor subsequently approved.  CMS Ex. 7 at 13.3  Thus, pursuant to section 424.520(d), the date Petitioner filed his subsequently-approved enrollment applications – September 7, 2017 – is the correct effective date of enrollment.  Sokoloff, DAB No. 2972 at 6-7; Urology Grp., DAB No. 2860 at 7-9; Goffney, DAB No. 2763 at 7.

Petitioner, however, complains that he began providing covered services more than a month prior to the retrospective billing date.  He points out – and CMS agrees – that he

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submitted initial applications on June 30, 2017.  CMS Exs. 1, 2.  However, claiming that he did not timely respond to the contractor’s requests for additional submissions, the contractor rejected those applications.  CMS Ex. 6.  Petitioner argues that he, in fact, timely responded to the requests and that the contractor should not have rejected the June 30 applications.  P. Br. at 6-7; P. Ex. 1 at 3-4 (Fielder Decl. ¶ 5).  However, I have no authority to review rejection of an enrollment application.  42 C.F.R. § 424.525(d); Wishon Radiological Med. Grp., Inc., DAB No. 2941 at 6-7 (2019); James Shepard, M.D., DAB No. 2793 at 8 (2017).

Conclusion

Because Petitioner filed his subsequently-approved enrollment applications on September 7, 2017, CMS properly granted his Medicare enrollment effective that date.  CMS is authorized to allow him to bill retrospectively for 30 days prior to that date.

• 1. I make this one finding of fact/conclusion of law.
• 2. CMS’s electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).
• 3. Form CMS 855I enrolls physicians and non-physician practitioners; Form CMS 855R reassigns the practitioner’s billing privileges to a Medicare-eligible entity, which may submit claims and receive payment for Medicare services provided by the practitioner.