Ramona Alea, CRNA and Alea Anesthesia, P.A. d/b/a Alea Enterprises, LLC, DAB CR5814 (2021)

DECISION

The effective date of the Medicare enrollment of Ramona Alea, CRNA and Alea Anesthesia, P.A. d/b/a Alea Enterprises, LLC (collectively referred to as Petitioner) is February 7, 2020, with retrospective billing privileges authorized beginning January 8, 2020.

I.  Background and Procedural History

Petitioner is a medical practice owned by Ramona Alea, CRNA (Ms. Alea), a nurse anesthetist.  See Centers for Medicare and Medicaid Services (CMS) Ex. 6 at 11, 15.  On July 29, 2019, First Coast Service Options, Inc. (First Coast), a Medicare administrative contractor, received Petitioner’s Form CMS-855I and Form CMS-855R1 applications to enroll in the Medicare program and reassign Ms. Alea’s benefits to the practice.  CMS

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Exs. 12, 13.  Petitioner completed section 4A(1) of the application, which pertains to corporations, associations, and limited liability companies, and reported that it had been issued a Tax Identification Number (TIN).  CMS Ex. 12 at 14.  Petitioner did not complete section 4A(3) of the application, which pertains to a sole proprietor who “wanted Medicare payments to be paid under [its] EIN [Employer Identification Number].”  CMS Ex. 12 at 14-15.  Although the Form CMS-855I directs an applicant to submit “[w]ritten confirmation from the IRS [Internal Revenue Service] confirming [its] Tax Identification Number and Legal Business Name provided in section 4A (e.g., IRS form CP-575)” of the application, Petitioner did not submit any IRS-generated documentation with its application.  CMS Ex. 12.  Rather, Petitioner submitted an undated copy of a Form SS-4 applicationfor an EIN for “Alea Anesthesia, P.A.”  CMS Ex. 14 at 58.  Petitioner reported that it is located in Palm Harbor, Florida (CMS Ex. 12 at 16, 32, 34), but directed First Coast to contact Ms. D. Ceier, located in Port Richey, Florida, with any questions about the application.  CMS Ex. 12 at 23.  

Because Petitioner did not comply with the instruction that it submit tax documentation of the TIN and legal business name it reported in section 4A(1) of the application (see CMS Ex. 12 at 22), First Coast sent a development letter to Ms. Ceier on September 9, 2019, requesting the “supporting documentation” of “a copy of [Petitioner’s] IRS Tax document to verify the Legal Business Name and Tax Identification Number.”  CMS Ex. 14 at 1.  First Coast cautioned that it “may reject [the] application(s) if [Petitioner] does not furnish complete information within 30 calendar days from the postmarked/emailed date of this letter pursuant to 42 [C.F.R. §] 424.525.”  CMS Ex. 14 at 1.   

On December 5, 2019, First Coast, after it did not receive a response to its development request, notified Petitioner, via Ms. Ceier, that it had rejected the enrollment application due to Petitioner’s “[f]ailure to supply the previously requested development . . . IRS document.”  CMS Ex. 10 at 1.  First Coast explained that pursuant to 42 C.F.R. § 424.525, “providers and suppliers are required to submit complete application(s) and all supporting documentation within 30 calendar days from the postmark/email date of the contractor request for missing/incomplete information.”  CMS Ex. 10 at 1.

On January 10, 2020, Petitioner submitted, via fax transmission, a December 24, 2019 letter from the IRS responding to Petitioner’s “request of December 13, 2019, asking [the IRS] to verify [its] employer identification number and name.”2   CMS Ex. 9 at 1-2.  Petitioner’s January 10, 2020 fax transmission cover sheet reports that it had “previously tried mailing in” this documentation, and includes a crossed-out original transmission

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date of “12/3/19” and a handwritten notation, “Faxed 12/3/19 2:59 PM.”  CMS Ex. 9 at 1; but see CMS Ex. 9 at 2 (IRS letter dated December 24, 2019).  

On February 7, 2020, First Coast received Form CMS-855I and CMS-855R applications from Petitioner.3   CMS Ex. 6.  In a cover letter, Ms. Ceier claimed “[t]he rejection letter [for the July 29, 2019 application] was never received nor was I informed on previous calls.”  CMS Ex. 6 at 1.  On April 22, 2020, after Petitioner complied with an April 6, 2020 development request (CMS Ex. 7), First Coast informed Petitioner that it had approved Petitioner’s enrollment, effective January 8, 2020.4   CMS Ex. 5 at 1-2.

Petitioner submitted a request for reconsideration dated May 12, 2020, stating, in pertinent part:

The original application was sent in July of 2019 . . . . There was a gap in information that was concerning the IRS form CP575.  I requested the form from my accountant, who gave me information which he insisted would satisfy the requirements.  The information was sent to CMS bu[t] did not meet the demand.  By the time I received the correct document from the IRS, too much time had elapsed . . . . We are requesting that the application approval date be retroactive to the time of the original application . . . .

CMS Ex. 2 at 2.

First Coast issued a reconsidered determination on June 22, 2020, in which it explained that “[t]he effective date of January 08, 2020 was issued correctly based on the processed application receipt date of February 07, 2020 pursuant to the effective date guidelines stated in Title 42 C.F.R. § 424.521(a).”  CMS Ex. 1 at 3.

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Petitioner, through counsel, submitted a request for an administrative law judge (ALJ) hearing on August 20, 2020.  Thereafter, 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 motion for summary judgment in lieu of a brief (CMS Br.), along with 14 proposed exhibits (CMS Exs. 1-14).  Petitioner filed a brief in response (P. Br.).  Although Petitioner filed an exhibit list, it did not submit any marked and paginated exhibits with its pre-hearing exchange.  Rather, it simply cross-referenced documents that it had appended to its request for hearing.  See Civil Remedies Division Procedures § 14; Pre-Hearing Order § 9 (requiring a party to submit its proposed exhibits with its pre-hearing exchange).    

Petitioner listed three proposed exhibits on its exhibit list:  an appointment of representative (P. Ex. 1), its application to register a fictitious business name (P. Ex. 2), and an exhibit described as “Additional documents relating to Medicare Enrollment Application” (P. Ex. 3).  Petitioner argues there is good cause to admit this evidence pursuant to 42 C.F.R. § 498.56(e).5

First, I do not admit proposed P. Ex. 1, which is Petitioner’s counsel’s notice of appointment.6  An appointment of a representative is not an evidentiary matter, and it is unnecessary to admit a notice of appointment into the evidentiary record.  For Petitioner’s reference, its counsel’s entry of appearance and notice of appointment can be found at entry number 4 of the DAB E-File case docket.

Petitioner has not shown good cause for the admission of proposed P. Ex. 2, which is a copy of its July 6, 2019 application for a fictitious business name.  This document was available during the reconsideration stage, and Petitioner has not shown good cause to support its admission into the evidentiary record.  42 C.F.R. § 498.56(e); Care Pro Home Health, Inc., DAB No. 2723 at 11 (2016) (discussing that “an ALJ must exclude ‘new documentary evidence’ – that is, documentary evidence that a provider did not previously submit to CMS at the reconsideration stage (or earlier) – unless the ALJ determines that ‘the provider or supplier has good cause for submitting the evidence for the first time at the ALJ level.’  42 C.F.R. § 498.56(e)(1).”).  Petitioner does not argue this evidence was unavailable at the reconsideration stage.  Rather, Petitioner essentially argues that it devised a new litigation strategy at the ALJ hearing stage.  A new litigation approach does not amount to good cause, and Petitioner’s failure to timely submit proposed P. Ex. 2 deprived First Coast of the opportunity to consider this evidence in the first instance.

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Additionally, proposed P. Ex. 2 is irrelevant to the question of whether First Coast correctly determined the effective date of Petitioner’s enrollment.  Petitioner erroneously believes that proposed P. Ex. 2 supports an impermissible challenge to First Coast’s rejection of its July 2019 application.  However, Petitioner may not challenge the rejection of a prior application.7   See Wishon Radiological Medical Group, Inc., DAB No. 2941 at 6 (2019) (stating that 42 C.F.R. § 424.525(d) “expressly provides that the rejection of an enrollment application is not appealable,” and 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 subsequently approved new application).   

I also do not admit proposed “P. Ex. 3,” which is a disorganized collection of more than 70 pages of unpaginated, unmarked, and internally duplicative documents that Petitioner had appended to its request for hearing.  Rather than submitting a proposed P. Ex. 3 with its pre-hearing exchange, Petitioner merely listed an exhibit 3 on its exhibit list, with the description, “Additional documents relating to Medicare Enrollment Application.”  See Pre-Hearing Order §§ 8, 9 (ordering the submission of a pre-hearing exchange consisting of a list of all exhibits and a copy of each proposed separate, marked, and paginated exhibit).  Notably, even though CMS had already submitted much of this documentation with its pre-hearing exchange (CMS Exs. 6, 9, 12, 13, 16), Petitioner nonetheless sought the admission of numerous duplicative documents.  See Pre-Hearing Order § 8 (“Petitioner should not file as proposed exhibits any documents that CMS has already filed among its proposed exhibits.”). 

To the extent that the content of proposed P. Ex. 3, even if properly submitted, is not duplicative of CMS’s submissions, the non-duplicative content is neither relevant nor material.  Proposed P. Ex. 3 includes undated enrollment applications, and therefore, these documents lack any evidentiary value.  Further, Petitioner submitted a copy of Ms. Alea’s driver’s license and documentation of her professional licensure status, both of which are irrelevant to the issues before me.  And finally, Petitioner submitted a copy of its applicationto register a fictitious name; this document is duplicative of proposed P. Ex. 2, which I addressed above. 

I admit CMS Exs. 1-14.  Neither party has submitted written direct testimony, as addressed in sections 12 through 14 of the Pre-Hearing Order.  A hearing for the purpose

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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.8

II.  Issue

Whether the effective date of Petitioner’s Medicare enrollment is February 7, 2020, with retrospective billing privileges authorized beginning January 8, 2020.

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).

IV.  Findings of Fact, Conclusions of Law, and Analysis9

Pursuant to 42 C.F.R. § 424.520(d), the effective date of Petitioner’s enrollment is February 7, 2020, which is the date of receipt of the Medicare enrollment application that First Coast was able to process to approval, and retrospective billing privileges are authorized beginning January 8, 2020, pursuant to 42 C.F.R. § 424.521(a)(1).

Petitioner is a “supplier” for purposes of the Medicare program.  See CMS Ex. 12 at 10; see also 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202 (definition of supplier), 498.2.  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.”  Id.; 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 2-3 (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

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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).  When a supplier has submitted a prior enrollment application that has been rejected, the prior application will not serve as the basis upon which to assign an earlier effective date of enrollment and billing privileges.  Wishon Radiological Medical Group, Inc., DAB No. 2941 at 6 (stating that an enrollment application rejected pursuant to 42 C.F.R. § 424.525(d) is “not appealable,” and explaining that section 424.525(d) would be a nullity if supplier could challenge a previously rejected application by appealing the effective date stemming from a subsequently approved new application).

The Departmental Appeals Board (DAB) 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).  First Coast rejected Petitioner’s July 2019 application on December 5, 2019 (CMS Ex. 10), and Petitioner re-applied on February 7, 2020.  CMS Ex. 6.  The date of receipt of Petitioner’s February 7, 2020 application is the basis for the effective date assigned for Petitioner’s enrollment.  See CMS Exs. 1, 5; see 42 C.F.R. § 424.520(d).  The facts establish that the February 7, 2020 application is the first application First Coast was able to process to approval after it rejected the incomplete July 29, 2019 application, for which Petitioner failed to comply with a development request.  CMS Ex. 10.   

Petitioner seeks billing privileges effective July 29, 2019, which is the date First Coast received the incomplete application it rejected after Petitioner failed to submit requested development.  CMS Ex. 12; see CMS Ex. 10.  When Petitioner submitted its reconsideration request, it acknowledged “[t]here was a gap in information that was concerning the IRS form CP575” and that “[b]y the time [it] received the correct [December 24, 2019] document from the IRS, too much time had elapsed.”  CMS Ex. 2 at 2.  Although I need not review whether First Coast appropriately rejected Petitioner’s July 2019 application, it is unquestionably clear that First Coast had a legitimate basis to reject an enrollment application in which Petitioner had reported that it had been issued a TIN (CMS Ex. 12 at 14), did not provide IRS documentation of its TIN and legal business name, as instructed in the application (CMS Ex. 12 at 22), and failed to respond to First Coast’s request for that documentation.  CMS Ex. 14 at 1.  

Had Petitioner immediately submitted a new application after the December 5, 2019 rejection of its application, the effective date of its enrollment and billing privileges could have been months earlier.  However, it appears that Petitioner was precluded from immediately re-applying because it did not possess the requisite documentation from the IRS.  See CMS Ex. 9 at 2 (IRS letter dated December 24, 2019, and reporting that Petitioner had requested IRS documentation on December 13, 2019); CMS Ex. 2 at 2 (May 12, 2020 statement by Ms. Alea, “By the time I received the correct document from the IRS, too much time had elapsed.”).

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Petitioner eventually submitted a new enrollment application on February 7, 2020, and this is the first application that First Coast was able to process to approval.  See CMS Ex. 6.  Petitioner has not identified any error by First Coast in assigning a February 7, 2020 effective date of enrollment based on the receipt date of the February 7, 2020 application, nor has Petitioner identified error in First Coast’s exercise of discretion to authorize  retrospective billing privileges 30 days earlier, beginning January 8, 2020.  Rather, Petitioner’s request for billing privileges beginning July 29, 2019, is nothing more than an attempt to rectify its failures to submit a complete application in July 2019 and respond to the September 2019 development request.  

Petitioner’s effort to challenge of the rejection of its July 2019 application is premised on, at best case, a gross misunderstanding of the facts.  Petitioner claims, without any evidentiary support, that First Coast “fail[ed] to understand the nature of the corporate entity that submitted the July 29, 2019 application, which caused First Coast to request from Petitioners certain information that it could not produce  -- specifically, IRS documents for a legal entity that First Coast believed to exist but did not.”  P. Br. at 4.  To be clear, Petitioner reported in section 4(A)(1) of its application that it had been issued a TIN, and it failed to comply with the application requirement that it submit “[w]ritten confirmation from the IRS confirming [its] Tax Identification Number and Legal Business Name provided in section 4A (e.g., IRS form CP-575).”  CMS Ex. 12 at 14, 22.  First Coast appropriately issued a development request for this documentation (CMS Ex. 14 at 1), and correctly rejected Petitioner’s incomplete application after Petitioner failed to respond to the development request.  CMS Ex. 10; see 42 C.F.R. § 424.525(d).

The earliest possible effective date for Petitioner’s enrollment is February 7, 2020, pursuant to 42 C.F.R. § 424.520(d), because that is the date First Coast first received an enrollment application that it could process to approval.   CMS Ex. 6.  First Coast exercised its discretion to authorize billing privileges 30 days earlier pursuant to 42 C.F.R. § 424.521(a)(1), and therefore, Petitioner’s billing privileges are authorized beginning the earliest date allowed by law, January 8, 2020.  Accordingly, I conclude that, pursuant to 42 C.F.R. § 424.520(d), the effective date of Petitioner’s enrollment is February 7, 2020, with retrospective billing privileges authorized beginning January 8, 2020.  42 C.F.R. § 424.521(a)(1).  

To the extent that Petitioner’s request for relief is based on principles of equitable relief, I cannot grant such 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

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applicable laws and regulations and may not invalidate either a law or regulation on any ground . . . .”). 

V.  Conclusion

For the foregoing reasons, I uphold the February 7, 2020 effective date of Petitioner’s enrollment, with retrospective billing privileges authorized beginning January 8, 2020.

1. On September 9, 2019, First Coast returned the Form CMS-855R to Ms. Alea because “[t]he CMS-855R is not needed for the transaction in question.”  CMS Ex. 12 at 1; see CMS Ex. 12 at 14 (Form CMS-855I instruction that “[i]f you are filling out section 4A, you do not need to complete a form CMS-855R to reassign your benefits as a practitioner to your business entity.”).
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2. Based on the reported December 13, 2019 date of Petitioner’s request for documentation from the IRS, it appears that Petitioner requested this documentation after it received notice of the December 5, 2019 rejection of its application.  CMS Exs. 9 at 2; 10 at 1.
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3. First Coast once again returned the Form CMS-855R application because it “is not needed for the transaction in question.”  CMS Ex. 8 at 1; see CMS Ex. 6 at 15.
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4. 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).  First Coast used imprecise language when it stated that it had assigned a January 8, 2020 effective date of enrollment.  In actuality, First Coast assigned a February 7, 2020 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 30 days earlier, on January 8, 2020, pursuant to 42 C.F.R. § 424.521(a)(1).
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5. CMS did not file any objections.
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6. Petitioner submitted its appointment on the standard form used for appeals filed with a different adjudicative body, the Office of Medicare Hearings and Appeals.
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7. I note that even if Petitioner could challenge a rejected application, proposed P. Ex. 2 is irrelevant; First Coast rejected the previous application because Petitioner failed to respond to a request that it provide written documentation from the IRS.  See CMS Ex. 14 at 1; see CMS Ex. 12 at 22.
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8. Because a hearing is unnecessary, I need not address whether summary judgment is appropriate.
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9. Findings of fact and conclusions of law are in bold and italics.
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