Thomas Mattheson, DC and Mattheson Chiropractic and Physical Therapy Center, PLLC, DAB CR5655 (2020)

DECISION

The effective date of Medicare enrollment and billing privileges of Petitioner Mattheson Chiropractic and Physical Therapy Center, PLLC (the Practice) is November 27, 2018.  The effective date of reassignment of the right to file claims with and receive payment from Medicare from Petitioner Dr. Thomas Mattheson (Petitioner Mattheson) to the Practice is also November 27, 2018.  Retrospective billing privileges are not available prior to November 27, 2018, because the Practice was not formed in New Hampshire prior to that date.

I.  Background

National Government Services, a Medicare Administrative Contractor (MAC), notified the Practice by letter dated December 20, 2018, that its application to enroll in Medicare (CMS-855I) as a group practice was approved effective November 27, 2018.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 160-64.  The MAC notified Petitioner Mattheson, also by letter dated December 20, 2018, that his application to

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reassign benefits (CMS-855R) to the Practice was approved effective November 27, 2018.  CMS Ex. 1 at 163-65.  On January 14, 2019, Petitioners requested a reconsidered determination to change the effective date of enrollment and reassignment of Medicare billing privileges to October 27, 2018.  CMS Ex. 2.

On February 11, 2019, a MAC hearing officer issued separate reconsidered determinations.  The MAC hearing officer approved November 27, 2018, as the effective date of enrollment for the Practice on grounds that the Practice did not meet New Hampshire licensure requirements before that date.  CMS Ex. 1 at 2.  The hearing officer also approved November 27, 2018, as the effective date of Petitioner Mattheson's reassignment of billing privileges to the Practice on grounds that he could not reassign his right to bill Medicare to the Practice before it was enrolled in Medicare.  CMS Ex. 1 at 6.

Petitioners requested a hearing (RFH) before an administrative law judge (ALJ) on February 21, 2019.  On March 11, 2019, the case was docketed and an Acknowledgement and Prehearing Order (Prehearing Order) was issued at my direction.

CMS filed a prehearing brief and motion for summary judgment (CMS Br.) with CMS Exs. 1 and 2 on April 10, 2019.  On April 9, 2019, Petitioners filed a document that was originally filed with its request for hearing.  Petitioner explained in a letter filed May 8, 2019, that it intended its April 9, 2019 filing to be its exchange.1  Petitioners also advised me that they waive oral hearing and request a decision on the documentary evidence and the pleadings.  CMS waived the right to file a reply on July 23, 2019.

The parties have not objected to my consideration of CMS Exs. 1 and 2 and they are admitted as evidence.

II. Discussion

A.  Applicable Law

Section 1831 of the Social Security Act (the Act) (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B.  Payment under the program for services rendered to Medicare-eligible

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beneficiaries may only be made to eligible providers of services and suppliers.2  Act §§ 1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395u(h)(1)).  Administration of the Part B program is through the MACs.  Act § 1842(a) (42 U.S.C. § 1395u(a)).

The Act requires the Secretary of Health and Human Services (the Secretary) to issue regulations that establish a process for the enrollment of providers and suppliers, including the right to a hearing and judicial review of certain enrollment determinations.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).

Pursuant to 42 C.F.R. § 424.505,3 a provider or supplier must be enrolled in the Medicare program and be issued a billing number to have billing privileges and to be eligible to receive payment for services rendered to a Medicare-eligible beneficiary.  A provider or suppler must meet state licensure requirements to enroll in Medicare.  42 C.F.R. § 424.516(a)(2).  The effective date of enrollment in Medicare of a physician, nonphysician practitioner, or physician and nonphysician practitioner organizations is governed by 42 C.F.R. § 424.520(d).  An enrolled physician, nonphysician practitioner, and physician and nonphysician organizations may retrospectively bill Medicare for

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services provided to Medicare-eligible beneficiaries, if all program requirements including state licensure requirements are met, for up to 30 days prior to the effective date of enrollment, if circumstances precluded enrollment before the services were provided.  Retrospective billing for up to 90 days prior to the effective date of enrollment is permitted only in case of a Presidentially-declared disaster pursuant to 42 U.S.C. §§ 5121-5206.  42 C.F.R. § 424.521.

The Medicare beneficiary, one who is entitled to benefits under Medicare part A or enrolled under part B, is the individual covered by Medicare and entitled to request payment for Medicare-covered health care items and services.  Act § 1802.  The assignment of the right to file a claim for Medicare coverage of health care charges from a Medicare beneficiary to a Medicare-enrolled provider or supplier is limited.  The reassignment of the right to file a Medicare-claim from an enrolled provider or supplier to another is very limited.  42 C.F.R. pt. 424, subpt. F.  Payment pursuant to a reassignment to an entity under a contractual relationship with the supplier who provided care or services is permitted but may be made only to an entity that is enrolled in Medicare.  42 C.F.R. § 424.80(b)(2).

The Secretary's regulations do not specify how to determine an effective date for an authorized reassignment.  42 C.F.R. pt. 424, subpt. F.  However, CMS has addressed the effective date of a reassignment by policy found in the Medicare Program Integrity Manual (MPIM), CMS Pub. 100-08, chap. 15, § 15.5.20 (rev. 676, eff. Dec. 19, 2016).4  MPIM § 15.5.20A requires that a CMS-855R be completed and filed by an individual who wants to reassign benefits to an eligible entity or to terminate a reassignment.  Both the party seeking to reassign (reassignor) and the party to whom reassignment is intended (reassignee) must be enrolled in Medicare.  A party seeking to reassign that is not enrolled may submit a CMS-855I concurrently with the CMS-855R to accomplish enrollment and reassignment.  If the party receiving the reassignment is not enrolled, that party must file the appropriate version of form CMS-855.  MPIM § 15.5.20A.

The Secretary has issued regulations that establish the right to a hearing and judicial review of certain enrollment determinations.  Act § 1866(j).  Pursuant to section 1866(h)(1) and (j)(8), a provider or supplier whose enrollment application or renewal application is denied is entitled to an administrative hearing and judicial review.  Pursuant to 42 C.F.R. § 498.3(b)(15), a supplier's effective date of enrollment is an initial determination that is subject to administrative review by an ALJ after a reconsidered determination.  42 C.F.R. § 498.5(l)(1)-(2).  Appeal and review rights are specified by 42 C.F.R. § 498.5.

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B.  Issues

The effective date of Medicare enrollment and billing privileges of the Practice;

The effective date of reassignment; and

Whether Petitioners are entitled to retrospective billing privileges.

C.  Findings of Fact, Conclusions of Law and Analysis

My conclusions of law are set forth in bold followed by my findings of fact and analysis.

1.  Petitioner waived oral hearing, CMS has not objected, and decision based on the documentary evidence and pleadings is appropriate.  42 C.F.R. § 498.66.

2.  Pursuant to 42 C.F.R. §§ 424.516(a)(2) and 424.520(d), the effective date of Medicare enrollment and billing privileges of the Practice is November 27, 2018, the date the Practice was formed in the State of New Hampshire and met state licensure requirements.

3.  The effective date of reassignment of Medicare billing privileges, i.e., the right to file claims with and to receive payment from Medicare, from Petitioner Mattheson to the Practice is November 27, 2018, the effective date of the enrollment of the Practice in Medicare.

4.  Retrospective billing privileges are not available for a date prior to November 27, 2018, the date the Practice was formed in New Hampshire and met state licensure requirements.

a.  Facts

It is not disputed that Petitioner Mattheson is the sole owner of the Practice, which is located in Dover, New Hampshire.  RFH at 1; CMS Ex. 1 at 1, 6, 154, 160.  The Practice was created in New Hampshire on November 27, 2018, as a professional limited liability company (PLLC).  CMS Ex. 1 at 154-55.  Dr. Matheson's New Hampshire chiropractic license was issued October 7, 2010 and had an expiration date of June 30, 2019, and there is no dispute that he was enrolled in Medicare before August 2018.  CMS Ex. 1 at 159.

According to Petitioners, they were a chiropractic practice enrolled in Medicare for 20 years.  Ownership of the practice changed in August 2018.  The change in ownership

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required filing applications with Medicare and that process began in September 2018.  In late November 2018, Petitioners learned that the name of the new practice was too long for the Internal Revenue Service (IRS) to include the entire name on some of its forms, which caused Petitioners to change the Practice name and file new Medicare applications.  RFH at 1; CMS Ex. 2 at 3 (reconsideration request).

Petitioners' story is consistent with the CMS evidence.

On October 1, 2018, the MAC received a CMS-855R that was signed by an office manager on September 19, 2018.  The CMS-855R sought to reassign Petitioner Mattheson's Medicare billing privileges to Mattheson and Blackman Family Chiropractic and Physical Therapy Center.  CMS Ex. 1 at 9-19.

The MAC advised Petitioners by letter dated October 26, 2018, that two CMS-855Bs would need to be filed, one to terminate the enrollment of the prior practice group, and the second to enroll the new practice group.  CMS Ex. 1 at 33-35, 56-58.

On October 31, 2018, the MAC received two applications from Petitioners.  CMS Ex. 1 at 54-55.  One of the applications was a CMS-855B.  CMS Ex. 1 at 61-109.  The MAC advised Petitioners by letter dated November 14, 2018, that because Petitioner Mattheson was the sole owner of the Practice, a CMS-855I enrollment application needed to be filed and not a CMS-855B.  CMS Ex. 1 at 111-13, 117-19.  By letter dated November 26, 2018, the MAC advised Petitioner that the CMS-855B received October 31, 2018, was closed.  CMS Ex. 1 at 114-15.

By another letter dated November 14, 2018, the MAC informed Petitioners that the CMS‑855R received by the MAC on October 1, 2018, needed to be corrected.  The MAC specified that the CMS-855R must be signed by Petitioner Mattheson.  The MAC also informed Petitioners that the legal business name for the practice group on file with the State of New Hampshire and the IRS was not the same and correction needed to be made with the State of New Hampshire.  CMS Ex. 1 at 36-38, 41-43.

On November 19, 2018, the MAC received three applications from Petitioners.  CMS Ex. 1 at 39.  The applications included a CMS-855R signed by Petitioner Mattheson dated November 14, 2018.  CMS Ex. 1 at 44-48.  The MAC informed Petitioners by another letter dated November 26, 2018, that it closed the CMS-855R received on October 1, 2018, because the CMS-855R received on October 1, 2018, duplicated the CMS-855R received on November 19, 2018.  The MAC further advised Petitioners that because Petitioner Mattheson was the sole owner of the Practice, he automatically reassigned to the group and no CMS-855R was required.  CMS Ex. 1 at 53.  The MAC also received on November 19, a CMS-855I application to enroll the Practice signed by Petitioner Mattheson and dated November 14, 2018.  CMS Ex. 1 at 146.  The CMS-855I listed the Practice as Mattheson and Blackman Family Chiropractic and Physical Therapy.  CMS

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Ex. 1 at 134.  Petitioners requested an effective date of enrollment of August 9, 2018.  CMS Ex. 1 at 136.  The evidence shows that Mattheson and Blackman Family Chiropractic and Physical Therapy Center PLLC was formed in the State of New Hampshire December 7, 2017.  CMS Ex. 1 at 30-31.  However, the Practice (Mattheson Chiropractic and Physical Therapy Center PLLC) was not formed in the State of New Hampshire until November 27, 2018.  CMS Ex. 1 at 154-55.  On November 29, 2018, Petitioners sent the MAC by facsimile an IRS document issuing the Practice an Employer Identification Number in the name of the Practice (Mattheson Chiropractic and Physical Therapy Center PLLC).  CMS Ex. 1 at 150-52.  The evidence does not include a CMS‑855I with the Practice name so it is not clear how the MAC determined to use the Practice name in its November 30, 2018 notice that the MAC received an enrollment application (CMS Ex. 1 at 156-58).5

b.  Analysis

The effective date of enrollment in Medicare of a physician, nonphysician practitioner, and physician and nonphysician practitioner organizations is governed by 42 C.F.R. § 424.520(d).  Generally, the effective date of enrollment for a physician or nonphysician practitioner may only be the later of two dates:  (1) the date when the physician filed an application for enrollment that was subsequently approved by a MAC charged with reviewing the application on behalf of CMS; or (2) the date when the physician first began providing services at a new practice location.  42 C.F.R. § 424.520(d).  The date of filing of the enrollment application is the date on which the Medicare contractor receives a signed enrollment application that the MAC is able to process to approval.  42 C.F.R. § 424.510(d)(1); 73 Fed. Reg. 69,725, 69,769 (Nov. 19, 2008); Alexander C. Gatzimos, MD, JD, LLC d/b/a Michiana Adult Medical Specialists, DAB No. 2730 at 1 (2016).  In this case, the applications the MACs processed to completion were received by the MAC on November 19, 2018.  CMS Ex. 1 at 2, 6, 39, 113, 119-149.

However, a provider or suppler must meet state licensure requirements to enroll in Medicare.  42 C.F.R. § 424.516(a)(2).  There is no dispute that the Practice was not formed under the laws of New Hampshire until November 27, 2018.  CMS Ex. 1 at 154‑55.  Because the Practice was not formed in the State of New Hampshire and did not legally exist prior to November 27, 2018, the Practice could not be enrolled in Medicare prior to that date.  The MAC determined on reconsideration that the date of enrollment was the date the Practice was incorporated in New Hampshire.  CMS Ex. 1 at 2, 6, 148

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(Keyer Instructions – 12/18/2018).  Therefore, the effective date of enrollment of the Practice cannot be before November 27, 2018.

The reassignment of billing privileges to the Practice for any claims for care and services delivered to Medicare beneficiaries was also not possible prior to November 27, 2018.  Reassignment of billing privileges is very limited and CMS will only pay claims under reassignments authorized by 42 C.F.R. § 424.80(b).  42 C.F.R. § 424.80(a).  CMS may make payments pursuant to the following reassignments:  to an employer; pursuant to a contractual relationship; to a government agency or entity; pursuant to a court order; or to an agent who provides billing and collection services.  Petitioner Mattheson sought to reassign his Medicare billing privileges to the Practice, a nonphysician practitioner organization.  CMS is authorized to pay for claims reassigned pursuant to a contractual relationship such as that between Petitioner Mattheson and the Practice.  However, reassignment may only be to an entity enrolled in Medicare.  42 C.F.R. § 424.80(b)(2); MPIM § 15.5.20A.  The Practice was not enrolled until November 27, 2018, and no reassignment could occur prior to that date.

Petitioners request that their effective date of enrollment and reassignment be changed to October 27, 2018, the date the prior practice's Medicare account was closed.  RFH at 1.  The burden is on Petitioners, not the government, to demonstrate that the MAC or CMS received the requisite enrollment forms and that Petitioners met all enrollment requirements, including state licensure requirements.  42 C.F.R. § 424.545(c).  Petitioners have not met their burden.  I conclude for the foregoing reasons that the effective date of enrollment of the Practice and the reassignment from Petitioner Mattheson to the Practice can be no earlier than November 27, 2018, the date the Practice was formed in New Hampshire and met New Hampshire licensure requirements.  CMS Ex. 1 at 154-55.

An enrolled physician or nonphysician practitioner who has met all program requirements, including state licensure requirements, 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.  42 C.F.R. § 424.521(a)(1); MPIM § 15.17B.  In this case, however, Petitioners are not authorized retrospective billing privileges to bill Medicare for services provided to Medicare-eligible beneficiaries during the 30 days prior to the effective date of enrollment and reassignment.  The Practice was not formed before November 27, 2018, and did not meet state licensure requirements before that date.

To the extent that Petitioners' arguments request equitable relief, I have no authority to grant Petitioners equitable relief in the form of an earlier effective date of enrollment, even if I were inclined to do so.  US Ultrasound, DAB No. 2302 at 8 (2010).  I am bound to follow the Act and regulations and have no authority to declare statutes or regulations invalid or ultra vires.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009).

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III.  Conclusion

For the foregoing reasons, the Practice's effective date of enrollment in Medicare is November 27, 2018.  The effective date of Petitioner Matheson's reassignment of his billing privileges to the Practice is also November 27, 2018.  Retrospective billing privileges are not available for the 30-day period prior to November 27, 2018.

• 1. Because Petitioner's April 9, 2019 filing is also part of the request for hearing, for purposes of this decision, citations are to Petitioners' request for hearing and page citations are to the document page counter number.
• 2. Dr. Mattheson is a chiropractor and, as such, he is a "supplier" under the Act.  Act § 1861(r) (42 U.S.C. § 1395x(r)).  A "supplier" furnishes services under Medicare and the term supplier applies to physicians or other practitioners and facilities that are not included within the definition of the phrase "provider of services."  Act § 1861(d).  The Practice is a physician or nonphysician practice organization within the meaning of 42 C.F.R. § 424.502 and a supplier.  Act § 1861(d).  A provider of services, commonly shortened to "provider," includes hospitals, critical access hospitals, skilled nursing facilities, comprehensive outpatient rehabilitation facilities, home health agencies, hospice programs, and a fund as described in sections 1814(g) and 1835(e) of the Act.  Act § 1861(u).  The distinction between providers and suppliers is important because they are treated differently under the Act for some purposes.
• 3. Citations are to the 2018 revision of the Code of Federal Regulations (C.F.R.) which was in effect at the time of the initial determinations, unless otherwise indicated.  An appellate panel of the Departmental Appeals Board (Board) concluded in Mark A. Kabat, D.O., DAB No. 2875 at 9-11 (2018) that the applicable regulations are those in effect at the time of the initial determination.  However, the Board previously concluded that the only determination subject to my review in a provider and supplier enrollment case such as this is the reconsidered determination.  Neb Grp. of Ariz. LLC, DAB No. 2573 at 7 (2014).  In this case, the applicable regulations did not change between the issuance of the initial and reconsidered determinations.
• 4. The latest revision of Chapter 15 § 15.5.20 is revision 898, effective Oct. 7, 2019.  There was no substantive change to the text.
• 5. It is possible that corrections to the CMS-855I were submitted to the MAC that are not in evidence.  However, the absence of that evidence does not affect the decision in this case.