Primary Care of Bonne Terre LLC and Andrew W. Ninichuck, M.D., DAB CR5053 (2018)

DECISION

Petitioner, Primary Care of Bonne Terre LLC, is a group medical practice in Bonne Terre, Missouri, that applied to enroll in the Medicare program.  Its sole owner, Petitioner Andrew W. Ninichuck, M.D., also applied and sought to assign his benefits to the group practice.  The Centers for Medicare & Medicaid Services (CMS) granted both enrollment applications with a retrospective billing date of October 24, 2015 (and, by inference, an effective date of November 23, 2015).  Petitioners have challenged this billing date, which I treat as challenges to the effective date.  See 42 C.F.R. § 498.3(b)(15).  I have consolidated the appeals (originally C-16-340 and C-16-341) because the cases involve the same parties, issues, and evidence.  Consolidation Order (March 9, 2016).

For the reasons set forth below, I find that November 23, 2015 (for Petitioner Primary Care) and November 25, 2015 (for Petitioner Ninichuck) are the earliest possible effective dates for Petitioners’ enrollments and that CMS had the authority to grant

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Petitioner Primary Care an October 24, 2015 retrospective billing date.  However, Petitioner Ninichuck’s retrospective billing date should be no earlier than October 26, 2015. 

Background

In letters dated December 17, 2015 (Petitioner Ninichuck) and December 22, 2015 (Petitioner Primary Care), the Medicare contractor, Wisconsin Physician Services Insurance Corporation, advised Petitioners that it approved their Medicare enrollments with billing dates of October 24, 2015 (which means November 23, 2015 “effective dates”).  CMS Exhibits (Exs.) 1 and 2.  Petitioners sought reconsideration, each asking that that the “effective date” be changed to July 1, 2015, which was about the time Petitioner Primary Care submitted its first (unsuccessful) application.  CMS Ex. 3.  In a reconsidered determination, dated January 29, 2015, the contractor affirmed the October 24 date, finding that Petitioners’ applications were received on November 23 (Petitioner Primary Care) and November 25 (Petitioner Ninichuck), and that the Medicare regulations permit physicians and physician organizations to bill retrospectively for up to 30 days prior to the effective date.  CMS Ex. 4 at 1. 

Petitioners appealed.

Although CMS has moved for summary judgment, neither party proposes any witnesses, so an in-person hearing would serve no purpose.  See Acknowledgment and Pre-hearing Order at 3, 5 (¶¶ 4(c)(iv), 8-10) (February 25, 2016).  This matter may therefore be decided on the written record, without considering whether the standards for summary judgment are satisfied.

With its prehearing motion and brief (CMS Br.), CMS submits 10 exhibits (CMS Exs. 1-10).  Petitioner submits documents marked P. Exs. 1-36.  Petitioner’s submissions are confusing; separate pages of documents are entered as separate exhibits; some documents are duplicative of CMS’s exhibits; the accompanying exhibit list does not adequately identify the documents.  Nevertheless, in the absence of any objections, I admit into evidence CMS Exs. 1-10 and P. Exs. 1-36.

Discussion

Because Petitioners Premier Care and Ninichuck submitted their subsequently-approved enrollment applications on November 23 and 25, 2015, their Medicare enrollment dates can be no earlier than those dates.1

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Program requirements.  To receive Medicare payments for services furnished to program beneficiaries, a Medicare supplier must be enrolled in the Medicare program.  42 C.F.R. § 424.505.  “Enrollment” is the process used by CMS and its contractors to:  1) identify the prospective supplier; 2) validate the supplier’s eligibility to provide items or services to Medicare beneficiaries; 3) identify and confirm a supplier’s owners and practice location; and 4) grant the supplier Medicare billing privileges.  42 C.F.R. § 424.502.  To enroll in Medicare, 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 physician or physician organization meets the applicable enrollment requirements, it grants Medicare billing privileges, which means that the practitioner can submit claims and receive payments from Medicare for covered services provided to program beneficiaries.  The effective date for billing privileges “is the later of” the date of filing a subsequently-approved enrollment application or the date the practitioner first began furnishing services at a new practice location.  42 C.F.R. § 424.520(d) (emphasis added).  The date of filing is the date the Medicare contractor receives an application.  Karthik Ramaswamy, M.D., DAB No. 2563 at 2 (2014).

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

Here, Petitioner Ninichuck started a new physician practice group, Primary Care of Bonne Terre LLC.  He was the sole owner.  CMS Ex. 5.  He sought to enroll himself and his practice in the Medicare program and to reassign his billing privileges to the practice group.  CMS rejected the practice group’s first two enrollment applications, submitted on June 30 and August 25, 2015.  CMS Exs. 6, 7.  On November 23, 2015, the practice filed its third enrollment application, which the contractor subsequently approved.  CMS Ex. 8. Petitioner Ninichuck filed his individual application on November 25, and CMS approved it.  CMS Ex. 9. 

Thus, the dates Petitioners Premier Care and Ninichuck filed their subsequently-approved enrollment applications – November 23 and 25 – are the correct effective dates for their enrollments.  I have no authority to review the contractor’s rejections of the earlier applications.  42 C.F.R. § 424.525(d). 

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On a final note, the Medicare contractors have created much confusion because they are inclined to conflate the effective date with the retrospective billing date, as the contractor did here.  The original notice letters give October 24, 2015, as the “Effective Date,” which it is not.  It is the retrospective billing date.  CMS Ex. 1 at 1; CMS Ex. 2 at 1.  The reconsidered determination did not correct the inaccuracy because it also refers to October 24 as the “effective date.”  CMS Ex. 4 at 2.  The distinction is important; I have the authority to review “the 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.   

Thus, I find that the earliest possible effective date for Petitioner Primary Care’s Medicare enrollment is November 23, 2015, with a retrospective billing date of October 24, 2015.  The earliest possible effective date for Petitioner Ninichuck’s enrollment is November 25, 2015.  Although CMS exceeded its authority under section 424.521, by allowing him to bill retrospectively for 32 days, I have no authority to correct that error.

Conclusion

Because Petitioner Primary Care filed its subsequently-approved application on November 23, 2015, that is the earliest possible effective date for its Medicare enrollment.  Because Petitioner Ninichuck filed his subsequently-approved enrollment application on November 25, 2015, that is the earliest possible effective date for his Medicare enrollment.

• 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).