Adobe ENT & Allergy, LLC, DAB CR5813 (2021)

DECISION

The effective date of the Medicare enrollment of Petitioner, Adobe ENT & Allergy, LLC, is January 9, 2020, with retrospective billing privileges authorized beginning December 10, 2019.

I.  Background and Procedural History

Petitioner is a medical practice that is solely owned by Michael Rodriguez, DO.  Centers for Medicare & Medicaid Services (CMS) Ex. 11 at 1, 4.  On June 4, 2019, Petitioner electronically submitted a Form CMS‑855B application to enroll in the Medicare program, listing a requested effective date of enrollment of September 1, 2019.  CMS Ex. 1 at 3.  On June 21, 2019, Noridian Healthcare Solutions (Noridian), a Medicare administrative contractor, closed Petitioner's request and returned the application because it was premature, in that Noridian could not accept an application that had been submitted more than 60 days prior to the effective date of enrollment.  CMS Ex. 2 at 1.  Noridian explained that Petitioner could resubmit its application on July 3, 2019.  CMS Ex. 2 at 1.  Apparently in response to Noridian's return of its application and notice that it could resubmit the application on July 3, 2019, Petitioner and Dr. Rodriguez, as the sole owner,

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submitted new enrollment applications on June 21 and 25, 2019, respectively, requesting an effective date of enrollment of July 3, 2019.  CMS Exs. 3 at 1, 3; 4 at 1, 4-5.  Dr. Rodriguez reported that Medicare beneficiaries had been treated at Petitioner's location beginning on July 3, 2019.  CMS Ex. 4 at 4.

On August 5, 2019, a site visit contractor visited Petitioner's reported office location at 20325 N 51st Avenue, Suite 154 in Glendale, Arizona, and discovered that the office was not open for business because it was still under construction.  CMS Ex. 5 at 1.  The site visit contractor spoke by telephone with Mr. Tran, who is listed as a contact person on the enrollment applications, and was informed that "the provider anticipates opening on 10/01/2019."  CMS Ex. 5 at 1; see CMS Exs. 3 at 7; 4 at 6.

On August 21, 2019, pursuant to 42 C.F.R. § 424.530(a)(5), Noridian denied Petitioner enrollment as Dr. Rodriguez's solely owned group because "[a]n onsite review was conducted on August 5, 2019 . . . and the onsite failed."  CMS Ex. 6 at 1.  Noridian reported that "[t]his location is under construction and expected to open for business October 2019."  CMS Ex. 6 at 1.  Noridian explained that a corrective action plan (CAP) could be submitted within 30 days "[i]f you believe that you are able to correct the deficiencies and establish your eligibility to participate in the Medicare program . . . ."  CMS Ex. 6 at 1.  Noridian also explained that a request for reconsideration could be filed within 60 days.  CMS Ex. 6 at 1.

Neither Petitioner nor Dr. Rodriguez submitted a CAP within 30 days.  Rather, Dr. Rodriguez, on behalf of Petitioner, submitted a request for reconsideration that was received on October 14, 2019.  CMS Ex. 7; see CMS Ex. 10 at 1.  Dr. Rodriguez reported that Petitioner had opened its office on October 1, 2019, and acknowledged that the office had been under construction at the time of the site visit.  CMS Ex. 7 at 2.

While the reconsideration request was pending, Dr. Rodriguez electronically submitted an October 14, 2019 application to reassign benefits to Petitioner.  CMS Ex. 8 at 1.  On December 3, 2019, Noridian returned this application because Petitioner was not enrolled in the Medicare program.  CMS Ex. 9 at 1.  Noridian explained that because the appeal period for the previously denied application remained pending, Dr. Rodriguez could either wait to resubmit the application or submit a CAP.  CMS Ex. 9 at 1.

In a letter dated December 31, 2019, Noridian denied the request for reconsideration, explaining that onsite review determined that the practice was not open.  CMS Ex. 10 at 1.  Noridian discussed that an on-site review revealed that Petitioner's practice was not open for business at the time of the visit.  CMS Ex. 10 at 2-3.  Noridian also pointed out that Dr. Rodriguez had stated that he "first saw a Medicare patient at [Petitioner's] practice location [on] July 3, 2019," but that the on-site visit had determined that Petitioner was not open for business at that time.  CMS Ex. 10 at 2-3.  With respect to Dr. Rodriguez's request "to enroll as a Sole Owner," Noridian instructed, "[y]ou will need to

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submit a new CMS 855 application to be considered for enrollment as a Sole Owner into the Medicare program."  CMS Ex. 10 at 3.

On January 9, 2020, Petitioner submitted a new application to enroll as Dr. Rodriguez's solely owned group.  CMS Ex. 11.  Thereafter, on January 30, 2020, Dr. Rodriguez submitted an application to reassign benefits to his practice.  CMS Ex. 12.

On February 21, 2020, Noridian approved Petitioner's enrollment application, along with Dr. Rodriguez's application to reassign benefits to his practice, effective December 11, 2019.1   CMS Exs. 13 at 1; 14 at 1.

Dr. Rodriguez, on behalf of Petitioner, submitted a request for reconsideration dated March 27, 2020, in which Petitioner requested that the effective date of its billing privileges be "backdated to October 1, 2019."  CMS Ex. 15 at 1.  Dr. Rodriguez stated the following, in pertinent part:

We initially started working on our application early last year and unfortunately had a few setbacks during the process. . . . Our practice, Adobe ENT & Allergy, opened its doors October 1, 2019.  We started seeing and treating Medicare patients the first day we opened, as we were unaware at the time that there were setbacks, and more to come.

CMS Ex. 15 at 1.

On June 22, 2020, Noridian denied an effective date of enrollment and billing privileges earlier than December 10, 2019.2   CMS Ex. 16.  Noridian explained that because it had previously denied enrollment pursuant to 42 C.F.R. § 424.530(a)(5), based on the August

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2019 site visit that determined Petitioner was not operational to furnish Medicare-covered items or services, Petitioner could neither re-apply, nor could Dr. Rodriguez reassign benefits to Petitioner, until the appeal of the denial of Petitioner's enrollment was resolved.  CMS Ex. 16 at 3-5, citing 42 C.F.R. § 424.530(b).  Noridian explained that the prior enrollment application remained pending until the issuance of the December 31, 2019 reconsidered determination.  CMS Ex. 16 at 3-5.  Noridian reported that Petitioner submitted a new enrollment application on January 9, 2020, and it was able to process this new application to approval.  CMS Ex. 16 at 2-5.  Noridian explained that it could not grant an earlier effective date of enrollment because the effective date of enrollment can be no earlier than the date of the application that is processed to approval.  CMS Ex. 16 at 5, citing 42 C.F.R. § 424.520(d).  Noridian also explained that it had afforded Petitioner the earliest possible enrollment date, authorizing retrospective billing privileges beginning December 10, 2019.  CMS Ex. 16 at 5, citing 42 C.F.R. § 424.521(a)(1).

Petitioner submitted a request for an administrative law judge (ALJ) hearing that was received on July 24, 2020.  The Civil Remedies Division issued my standing pre-hearing order (Pre-Hearing Order) that directed the parties to file their respective pre-hearing exchanges.  CMS filed a pre-hearing brief and motion for summary judgment, along with 16 proposed exhibits (CMS Exs. 1-16).  Thereafter, Petitioner filed a copy of its request for hearing and two statements that I collectively construe as its pre-hearing exchange.

Neither party has submitted written direct testimony, as addressed in sections 11 through 13 of the Pre-Hearing Order.  A hearing for the purpose of cross-examination is therefore unnecessary.  I consider the record in this case to be closed, and the matter is ready for a decision on the merits.3

II.  Issue

Whether the effective date of Petitioner's Medicare enrollment is January 9, 2020, with retrospective billing privileges authorized beginning December 10, 2019.

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); 42 U.S.C. § 1395cc(j)(8).

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IV.  Findings of Fact, Conclusions of Law, and Analysis4

Pursuant to 42 C.F.R. § 424.520(d), the effective date of Petitioner's Medicare enrollment is January 9, 2020, which is the date of receipt of the Medicare enrollment application that Noridian was able to process to approval, and retrospective billing privileges are authorized beginning December 10, 2019, pursuant to 42 C.F.R. § 424.521(a)(1).

As a solely owned group, Petitioner is a "supplier" for purposes of the Medicare program.  See 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 that 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."  42 C.F.R. § 424.510(a)(1); see also 42 C.F.R. § 424.510(d) (listing enrollment requirements for suppliers).  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.'"  Gatzimos, DAB No. 2730 at 2-3, citing 42 C.F.R. § 424.520(d).

The Departmental Appeals Board 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).  Petitioner's arguments focus on the previous enrollment applications that either were denied or could not be processed.  Specifically, Petitioner argues that it had submitted an enrollment application on October 14, 2019.  However, Petitioner did not submit an enrollment application on October 14, 2019; rather, Noridian received Petitioner's request for reconsideration of the denial of its

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enrollment on October 14, 2019.5   Because Petitioner chose to request reconsideration, rather than submit a CAP, its previously denied application remained open in an appeal status.  See 42 C.F.R. § 424.530(b).  Noridian clearly instructed that Petitioner could submit a CAP rather than appealing the denial of its enrollment; had Petitioner submitted, within 30 days of the August 21, 2019 initial determination, a CAP demonstrating it was actually operational, it is quite possible that Noridian could have approved Petitioner's enrollment with the requested effective date of October 1, 2019.  See CMS Exs. 6 at 1; 8 at 2.  Petitioner chose to appeal the unfavorable initial determination, and as a result, its enrollment application remained open until Noridian issued the reconsidered determination on December 31, 2019.  Noridian could not process a new enrollment application while a previous application remained pending on appeal.  42 C.F.R. § 424.530(b).  See Wishon Radiological Medical Group, Inc., DAB No. 2941 at 6 (2019) (stating, in the context of a previously rejected application, that section 424.525(d) "would be rendered null" if a petitioner could challenge a previously rejected application through an appeal of the effective date stemming from a subsequent application).

Petitioner made miscalculations and blunders that delayed the approval of its enrollment, and Noridian bears no responsibility for the delay.  First, Petitioner immediately re-submitted enrollment applications after Noridian specifically directed it to wait until no less than 60 days prior to the date it would be operational before re-applying.  CMS Exs. 3, 4; see CMS Ex. 2.  Second, Petitioner reported an apparently implausible date as the first date it began treating Medicare beneficiaries at its location, and it appears that this information triggered the on-site review.  See CMS Exs. 3 at 3; 4 at 3-4; 5; see also CMS Ex. 10 at 1 ("Noridian received [the] CMS 855I application to enroll as a Sole Owner into the Medicare program.  Upon review of [the] application it was determined an on-site review would be requested prior to entering [the] new Sole Owner group into the Medicare program.").  Third, when it was given the opportunity to file a CAP and demonstrate that it was, in fact, operational, it chose not to do so, instead opting to appeal the denial of its enrollment.  CMS Exs. 6, 7.  And fourth, even though Petitioner knew its Medicare enrollment had been denied, it nonetheless began to treat Medicare beneficiaries beginning on October 1, 2019; by doing so, Petitioner knowingly took the risk that it would not be reimbursed for those services.

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Petitioner argues that "[a]t no point did Dr. Rodriguez was notified [sic] an appeal and application cannot be submitted at the same time."  While it is unfortunate that Petitioner was unaware that the provisions to 42 C.F.R. § 424.530(b) precluded it from simultaneously pursuing a new application while appealing a previously denied application, the Medicare enrollment requirements are published in the Code of Federal Regulations and Petitioner is responsible for being familiar with enrollment requirements.  Further, Petitioner essentially argues that Noridian should have advised it not to file an appeal; Noridian, as a Medicare administrative contractor, does not represent suppliers or serve as counsel to suppliers.  It would be unconscionable for Noridian to direct a supplier to forego its right to appeal the denial of its enrollment.  Noridian unambiguously informed Petitioner of two options, submitting a CAP or appealing by submitting a request for reconsideration.  CMS Ex. 6 at 1.  Petitioner chose to appeal.  CMS Ex. 7.

On January 9, 2020, Petitioner submitted the enrollment application that Noridian was able to process to approval.  Therefore, pursuant to 42 C.F.R. § 424.520(d), the earliest possible effective date for Petitioner's enrollment is January 9, 2020, the date Noridian received the enrollment application that could be processed to approval.  Billing privileges are authorized beginning up to 30 days earlier pursuant to 42 C.F.R. § 424.521(a)(1), and therefore, Petitioner's billing privileges are authorized on the earliest possible date allowed by law, December 10, 2019.  Accordingly, I conclude that, pursuant to 42 C.F.R. § 424.520(d), the effective date of Petitioner's enrollment is January 9, 2020, with retrospective billing privileges authorized beginning December 10, 2019.

Petitioner's mistakes, even if inadvertent or due to a lack of familiarity with Medicare requirements, ultimately resulted in a loss of approximately two months of Medicare reimbursements.  Unfortunately, I am not empowered to impose any remedy based on principles of equitable 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 it 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 . . . .").

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V.  Conclusion

For the foregoing reasons, I uphold the January 9, 2019 effective date of Petitioner's Medicare enrollment, with retrospective billing privileges authorized beginning December 10, 2019.

• 1. Although an effective date of enrollment is set in accordance with 42 C.F.R. § 424.520(d), CMS or its contractor may permit retrospective billing for 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).  Noridian used imprecise language when it stated that it had assigned a December 11, 2019 effective date for Petitioner's enrollment.  In actuality, Noridian assigned a January 9, 2019 effective date for enrollment, based on the receipt date of the application, pursuant to 42 C.F.R. § 424.520(d), and it authorized retrospective billing privileges beginning on December 11, 2019, pursuant to 42 C.F.R. § 424.521(a)(1).
• 2. Noridian allowed one additional day of retrospective billing, beginning December 10, 2019, to afford Petitioner the full 30 days of retrospective billing authorized by 42 C.F.R. § 424.521(a)(1).  CMS Ex. 16 at 5.
• 3. Because a hearing is unnecessary, I need not address whether summary judgment is appropriate.
• 4. Findings of fact and conclusions of law are in bold and italics.
• 5. Dr. Rodriguez also submitted an application to reassign his benefits to Petitioner on October 14, 2019 (CMS Ex. 8), which Noridian returned because Dr. Rodriguez could not reassign his Medicare benefits to a solely owned group that was not enrolled in the Medicare program.  CMS Ex. 9.  Noridian accepted and approved Dr. Rodriguez's subsequent application to reassign benefits to Petitioner when it ultimately approved Petitioner's enrollment application on February 21, 2020.  See CMS Exs. 13, 14.  See Gaurav Lakhanpal, MD, DAB No. 2951 at 6 (2019) ("the effective date of . . . reassignment of billing privileges is . . . the date that [the contractor] received [the] reassignment application that was subsequently approved.").