Samuel Behrman, DAB CR5900 (2021)

DECISION

Petitioner, Samuel Behrman, PhD, appeals the determination establishing the effective date of his enrollment and billing privileges as a Medicare supplier.  For the reasons explained below, I find that Palmetto GBS (Palmetto), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), properly determined that the effective date of Petitioner’s billing privileges is April 15, 2019, with retrospective billing permitted as of March 16, 2019.1

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I.    Background

Samuel Behrman, PhD, was enrolled in the Medicare program and had obtained billing privileges.  On January 25, 2017, his Medicare “enrollment was deactivated for non‑billing in a specified amount of time.”  CMS Ex. 1 at 1.  On December 19, 2018, Palmetto received an individual application from Petitioner to reactivate and reassign his billing privileges.  CMS Ex. 1 at 1.  In a letter dated January 15, 2019,2 Palmetto requested that Petitioner provide additional development and re-sign and re-date portions of the application.  CMS Ex. 3 at 1.  On February 15, 2019, Palmetto rejected Petitioner’s application for non-response to the development requests.  CMS Ex. 2 at 1.  Petitioner then submitted a new application for enrollment, which Palmetto received on April 15, 2019.  CMS. Ex. 4; CMS Ex. 1 at 2.  In a letter dated June 7, 2019, Palmetto notified Petitioner that the “initial application” was approved, with an effective date of June 1, 2019.  CMS Ex. 5 at 1.

Petitioner filed a request for reconsideration on June 17, 2019, asserting that the effective date should be November 1, 2018.  CMS Ex. 6 at 4; CMS Ex. 1 at 2.  Palmetto denied this request on September 12, 2019, on the basis that the request was not signed by an authorized or delegated official, the provider or supplier, or a legal representative.  CMS Ex. 6 at 3.  Palmetto received a second request for reconsideration on September 25, 2019, in which Petitioner again argued that the effective date of the enrollment should be November 1, 2018.  CMS Ex. 6 at 2; CMS Ex. 1 at 2.  In a reconsideration determination dated December 18, 2019, Palmetto found that the effective date of March 16, 2019, was correct.3   CMS Ex. 1 at 2.

Petitioner timely filed a request for hearing before an Administrative Law Judge (ALJ).  On February 14, 2020, ALJ Thomas issued an Acknowledgement and Pre-Hearing Order (APHO).4   In response, CMS filed a motion for summary judgment and supporting brief (CMS Br.), accompanied by six proposed exhibits (CMS Exs. 1-6).  Petitioner filed a response (P. Br.) that I construe as a brief and two proposed exhibits (P. Exs. 1-2).

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While not specifically characterized as an objection, CMS argues that the two proposed exhibits from Petitioner should not be admitted or considered because they were not submitted with the request for reconsideration.  CMS Br. at 5 n.5.  Regulations do allow me to consider new documentary evidence that was submitted for the first time at the ALJ level, but only if good cause exists.  42 C.F.R. § 498.56(e)(1).  In this case, Petitioner does not assert, nor does the record support, any good cause for the submission of P. Exs. 1 and 2 for the first time at the hearing level.  As a result, I may not consider them and they are not admitted to the record.5   42 C.F.R. § 498.56(e)(2)(ii).  CMS Exs. 1‑6 are admitted into the record.

Neither party has submitted written direct testimony.  APHO § 9.  A hearing for the purpose of cross-examination is therefore unnecessary.  APHO §§ 10-11.  I consider the record in this case to be closed, and the matter is ready for a decision on the merits.6   APHO § 12.

II.    Issue

The issue in this case is whether Palmetto, acting on behalf of CMS, properly established April 15, 2019, as Petitioner’s effective date for enrollment in Medicare, with retrospective billing privileges authorized from March 16, 2019.

III.    Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2); see also Social Security Act (Act) § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

IV.    Discussion

A.  Applicable Authority

A provider or supplier that seeks billing privileges under Medicare must “submit enrollment information on the applicable enrollment application.”  42 C.F.R. § 424.510(a).  A “provider or supplier must submit a complete enrollment application and supporting documentation to the designated Medicare fee-for-service contractor,” and the

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application must include “[c]omplete, accurate, and truthful responses to all information requested within each section as applicable to the provider or supplier type.”  42 C.F.R.  § 424.510(d)(1)-(2).  “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).

CMS may deactivate a physician’s billing privileges, and no Medicare payments will be made, when a physician “does not submit any Medicare claims for 12 consecutive calendar months.”  42 C.F.R. §§ 424.540(a)(1), 424.555(b).  To reactivate his billing privileges, the physician must complete and submit a new enrollment application.  42 C.F.R. § 424.540(b)(1).  It is settled that, following deactivation, section 424.520(d) governs the effective date of reenrollment.  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), aff’d sub nom. Goffney v. Becerra, 995 F.3d 737 (9th Cir. 2021).  I have no authority to review a deactivation.  Sokoloff, DAB No. 2972 at 6; Ark. Health Grp., DAB No. 2929 at 7-9 (2019).

CMS “may reject” an application if a supplier “fails to furnish complete information on the provider/supplier enrollment application within 30 calendar days from the date of the contractor request for the missing information.”  42 C.F.R. § 424.525(a)(1); see also 42 C.F.R. § 424.502 (definition of Reject/Rejected).  CMS may “at its discretion, choose to extend the 30-day period [for submitting additional information] if CMS determines that the . . . supplier is actively working with CMS to resolve any outstanding issues.”  42 C.F.R. § 424.525(b) (emphasis added).  If CMS or its contractor rejects an enrollment application, the supplier must submit a new enrollment application.  42 C.F.R. § 424.525(c).  The decision by CMS or its contractor to reject an enrollment application is not subject to appeal.  42 C.F.R. § 424.525(d). 

B.  Findings of Fact and Conclusions of Law7

1.  Petitioner’s effective date of Medicare enrollment is April 15, 2019, with retrospective billing privileges as of March 16, 2019.

Palmetto received an application to reactivate billing privileges from Petitioner on April 15, 2019.  CMS Ex. 1 at 2.  This application was processed to approval.  Palmetto subsequently granted Petitioner retrospective billing privileges beginning March 16, 2019, with an effective date of Medicare enrollment of April 15, 2019.  CMS Ex. 1 at 2.

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2.  I have no authority to review Palmetto’s rejection of Petitioner’s December 19, 2018 enrollment application.

Petitioner argues that I should grant him an earlier effective date of enrollment to November 19, 2018.8   P. Br. at 1; CMS Ex. 6 at 2.  He asserts that there was a timely and accurate response to the development letter and the application filed on December 19, 2018 should not have been rejected.  Petitioner states that following the submission of that application, there was a request for additional information on January 15, 2019.  He asserts that the requested information was emailed to Susan Hembree on January 23, 2019 and faxed to CMS on the same date.9   Petitioner points to numerous mistakes made by the contractor in conjunction with his application, including identifying him as a Nurse Practitioner (NP) rather than a psychologist, and he asserts that his application was not properly processed from the very beginning.  CMS Ex. 6 at 2.

To be sure, there were numerous errors made by the contractor in this case.  Dr. Behrman was identified as both an MD and an NP, even though he clearly indicated he is a psychologist with a PhD.  CMS Ex. 1 at 1; CMS Ex. 2 at 1; CMS Ex. 4 at 9, 24; CMS Ex. 5 at 1.  The initial approval notice on the application received on April 15, 2019 contained an incorrect effective date.  CMS Ex. 5 at 1; CMS Ex. 6 at 2.  Further, the contractor cited an incorrect date for the development request in the reconsideration determination.  CMS Ex. 1 at 1; CMS Ex. 3 at 1.  Petitioner also appears to have made a good faith effort to comply with the development request.  However, none of these considerations are relevant. 

The effective date of Medicare billing privileges is the date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor.  42 C.F.R. § 424.520(d)(1) (emphasis added).  In order to find an enrollment date of December 19, 2018, and the retrospective billing date of November 19, 2018 sought by Petitioner, the application received on December 19, 2018 would have had to have been approved by Palmetto.  It was not approved.  Rather, it was rejected by Palmetto for no response to development requests.  CMS Ex. 2 at 1.  Enrollment applications that are rejected are not afforded appeal rights.  42 C.F.R. § 424.525(d).  By regulation, the remedy for a rejected application is to submit a new enrollment application.  42 C.F.R. § 424.525(c).  I cannot grant a December 19, 2018 effective date for Petitioner’s

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Medicare enrollment unless I set aside Palmetto’s rejection of that enrollment application.  I have no authority to do so under the provisions of 42 C.F.R. § 424.525(d).

3.  Petitioner’s equitable arguments are not a basis to grant an earlier effective date of Medicare enrollment.

As noted above, Petitioner argues that many mistakes were made by the Medicare contractor and that he did attempt to comply with all development requests.  P. Br.; CMS Ex. 6 at 2.  These arguments are equitable in nature and, regardless of how compelling they might be, I do not have the authority to grant the equitable relief sought.  I cannot set aside the lawful exercise of discretion by CMS or its contractor based on principles of equity.  US Ultrasound, DAB No. 2302 at 8 (2010).  I cannot grant an exemption to Petitioner from the regulation governing the effective date of Medicare billing privileges as promulgated in 42 C.F.R. § 424.520(d), which is binding on me.  As a result, I find no basis to overturn Palmetto’s effective date determination.

V.    Conclusion

I affirm CMS’s decision that the effective date of Petitioner’s Medicare enrollment and billing privilege is April 15, 2019, with retrospective billing permitted as of March 16, 2019.

• 1. In the reconsideration determination dated December 18, 2019, Palmetto identified March 16, 2019 as the “effective date” of  Petitioner’s billing privileges.  CMS Ex. 1 at 2.  However, by regulation, the “effective date” for billing privileges is the date of filing of a Medicare application for enrollment or reactivation that was subsequently approved by a Medicare contractor.  42 C.F.R. § 424.520(d)(1).  In this case, Palmetto received Petitioner’s application on April 15, 2019, and this application was subsequently approved.  CMS Ex. 1 at 2, CMS Ex. 5 at 1.  As a result, the “effective date” in this case is April 15, 2019.  CMS may permit a supplier to “retrospectively bill” for services for up to 30 days prior to that effective date.  42 C.F.R. § 424.521(a)(1).  Because the March 16, 2019 date is 30 days prior to the date that Palmetto received Petitioner’s application, it appears that Palmetto used the term “effective date” to refer to the date from which Petitioner is authorized to retrospectively bill for Medicare services.  In this decision, the term “effective date” refers to the effective date of billing privileges, rather than the date from which retrospective billing is authorized.
• 2. Palmetto mistakenly refers to this date as January 15, 2018 in the reconsideration determination.  CMS Ex. 1 at 1.
• 3. See supra note 1 regarding the use of the term “effective date.”
• 4. This case was originally assigned to ALJ Thomas, but was reassigned to me on June 17, 2021.
• 5. I recognize that Petitioner is appearing without legal representation and am sensitive to ensuring that his legal rights are protected.  However, given the ultimate preclusion of reconsideration of the December 19, 2018 application, as discussed below, my decision not to admit Petitioner’s new evidence makes no difference in the outcome of this case.
• 6. Because a hearing is not necessary, I need not decide whether summary judgment is appropriate.
• 7. My findings of fact and conclusions of law appear as numbered headings in bold italic type.
• 8. With the use of this date, Petitioner appears to technically be seeking a retrospective billing date 30 days prior to the effective date of an approved application.  This is permitted, under certain circumstances, pursuant to the provisions of 42 C.F.R. § 424.521(a)(1).  However, Petitioner also argued for an enrollment date of November 1, 2018.  CMS Ex. 6 at 2.  The regulatory basis for this latter date is not clear.
• 9. Copies of the email and fax transmission records were submitted for the record but were not admitted as exhibits for the reasons discussed above.  P. Exs. 1, 2.