James Rogan, M.D., P.C., DAB CR6015 (2022)

DECISION

This decision affirms the determination of Palmetto GBA (Palmetto), a contractor for the Centers for Medicare & Medicaid Services (CMS), that the effective date of James Rogan, M.D., P.C.’s (hereinafter “Dr. Rogan” or “Petitioner”) Medicare enrollment and billing privileges is October 7, 2020, with a retrospective billing date of July 9, 2020.

I. Background and Procedural History

On May 12, 2021, Dr. Rogan, pro se, timely requested a hearing before an administrative law judge (ALJ) to contest the effective date of his Medicare enrollment.

On May 27, 2021, I issued an acknowledgment letter and standing prehearing order (Standing Order), along with a non-discrimination notice and the CRD Procedures (CRDP).

On July 1, 2021, CMS filed a Motion for Summary Judgment (CMS Br.), along with four exhibits (CMS Exs. 1-4).  CMS did not offer witnesses or provide any sworn declarations.

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On August 4, 2021, Petitioner filed a Response Brief (P. Br.) along with 4 exhibits.  On August 6, 2021, Petitioner’s Representative, Dana Stevenson, was informed via email that the exhibits did not conform to the requirements set forth in my Standing Order.  Petitioner was given until August 16, 2021, to refile his exhibits in accordance with my Standing Order.  On September 3, 2021, after Petitioner failed to refile his exhibits, I issued an Order Rejecting Petitioner’s Exhibits.

Neither party offered witnesses, so this case will be decided on the written record, without considering whether the standards for summary judgment are satisfied.  CRDP § 19(b).  Furthermore, in the absence of objections from Petitioner, all of CMS’ proposed exhibits are admitted into evidence.  Standing Order § 9.

II. Findings of Fact

The following Findings of Fact are undisputed.

1. Petitioner is a medical doctor who has practiced medicine for over 27 years, with a focus on geriatric care.  P. Br.
2. In January 2020, Petitioner was named medical director of a nursing home facility in Milledgeville, Georgia.  P. Br. at 1.  Petitioner began treating patients in February 2020.  P. Br. at 1.
3. Petitioner signed and filed his Medicare Enrollment Application (Application) on October 7, 2020.  CMS Ex. 1
4. On December 1, 2020, Palmetto informed Petitioner that his initial enrollment application was approved with a retrospective billing date of July 9, 2020.1   CMS Ex. 3 at 1.
5. On January 29, 2021, Petitioner submitted a reconsideration to Palmetto requesting an effective date of February 1, 2020.  CMS Ex. 4 at 1.
6. On March 13, 2021, Palmetto responded to Petitioner’s reconsideration request finding that no errors were made with regard to his effective date and maintained that October 7, 2020, was the proper effective date with retrospective billing privileges beginning July 9, 2020.

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III. Jurisdiction

This tribunal has 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).

IV. Legal Authorities

The Social Security Act (the Act) establishes the enrollment process for providers and suppliers participating in Medicare or Medicare related programs.  42 U.S.C. §§ 1302, 1395cc(j).  Under the Act, “suppliers” are physicians or other practitioners, 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).  Providers include hospitals, skilled nursing facilities, and home health agencies.  42 U.S.C. § 1395x(u).  Dr. Rogan is a “supplier.”  42 U.S.C. § 1395x(d); 42 C.F.R. § 400.202.

A provider or supplier must be enrolled in the Medicare program in order to receive payment for covered items or services from either Medicare (in the case of an assigned claim) or a Medicare beneficiary.  42 C.F.R. § 424.505.  Once enrolled, the provider or supplier receives billing privileges and is issued a valid billing number effective for the date a claim was submitted for an item that was furnished or a service that was rendered.  42 C.F.R. § 424.505.

The regulations provide that the effective date of enrollment for a physician or nonphysician practitioner may only be the later of two dates:  the date when the practitioner filed an 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 practitioner first began providing services at a new practice location.  42 C.F.R. § 424.520(d).  An enrolled physician or nonphysician practitioner 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, or 90 days if a Presidentially-declared disaster precluded enrollment in advance of providing services.  42 C.F.R. § 424.521.

V. Analysis

It is undisputed that Petitioner completed an electronic application for Medicare enrollment on October 7, 2020, and that the initial enrollment application was approved by Palmetto with a retrospective billing date of July 9, 2020.  CMS Br. at 3, CMS Ex. 3.  Therefore, CMS correctly determined that October 7, 2020, is the effective date of Petitioner’s Medicare enrollment.  42 C.F.R. § 424.520(d).  Petitioner has requested an effective date of February 1, 2020, the day that he began providing patient care.

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The regulations provide that a practitioner may retrospectively bill Medicare up to 90 days prior to the effective date if a Presidentially declared disaster precluded enrollment in advance of providing services.  42 C.F.R. § 424.521.  Petitioner was provided 90 days of retrospective billing privileges due to the COVID-19 pandemic, a Presidentially declared disaster.  CMS Ex. 3.  Pursuant to the regulations, July 9, 2020, is the earliest possible retrospective billing date that Petitioner could have received.  42 C.F.R. § 424.521.

Petitioner argues that the effective date of his billing privileges should be February 1, 2020, because he made two prior attempts to submit his Medicare enrollment application in October 2020 and July 2020, but he did not receive a response from CMS. P. Br. 1.  Petitioner also argues that he will face financial hardship due providing months of services without payment.  P. Br.  Though I appreciate the efforts of healthcare providers, particularly during the Covid-19 pandemic, there is no legal basis that allows me to grant Petitioner’s request.  Petitioner’s arguments amount to a request for equitable relief and must be denied.  The regulations do not provide this tribunal with the authority to grant equitable relief, thus Petitioner’s effective date cannot be changed based upon the reasons provided.  US Ultrasound, DAB No. 2302 at 8 (2010) (“[n]either the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).  For the reasons explained above, I conclude that Petitioner’s July 9, 2020 enrollment date is correct.

VI. Conclusion

CMS correctly determined that Petitioner’s effective date for Medicare enrollment and billing privileges is October 7, 2020, with retroactive billing allowed beginning on July 9, 2020.  Therefore, CMS’ determination is AFFIRMED.

1. While the letter states that July 9, 2020, is Petitioner’s Effective Date, as I will discuss herein, October 7, 2020, is the effective date with a retrospective billing date of July 9, 2020.
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