Steppingstone Counseling and Che Blaine, LCSW, DAB CR6013 (2022)

DECISION

Noridian Healthcare Solutions (Noridian), a Medicare administrative contractor for the Centers for Medicare & Medicaid Services (CMS), approved the reenrollment application of Che Blaine, LCSW (Petitioner)1 effective August 2, 2019, with retroactive billing privileges effective July 3, 2019.  Petitioner requested a hearing before an administrative law judge because he seeks an earlier effective date.  Because Noridian approved Petitioner’s enrollment application that it received on August 2, 2019, it correctly determined Petitioner’s effective date of enrollment to be August 2, 2019.  Noridian exercised its discretion to grant Petitioner retroactive billing privileges beginning on July 3, 2019, the earliest date such privileges could be granted.  Therefore, I affirm the effective date determination.

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I.   Background

Petitioner is a Medicare supplier in Eastsound, Washington.  CMS Ex. 6 at 1-2.  Petitioner first became enrolled in the Medicare program in June 2012.  CMS Ex. 1 at 2.  On January 25, 2017, Noridian deactivated Petitioner’s enrollment pursuant to 42 C.F.R. § 424.540(a)(1) because Noridian concluded Petitioner had not submitted any Medicare claims for 12 consecutive months.  Id.; see also CMS Ex. 2 at 2.2   Noridian attempted to notify Petitioner by mail that his Medicare billing privileges were deactivated; however, Petitioner did not receive the notice.  P. Brief (Br.) at 2; CMS Ex. 1 at 2 (indicating the mailed notice was returned).  At some point following January 25, 2017, Petitioner learned of the deactivation when a submitted claim was denied.  CMS Ex. 2 at 2.  Sometime in early 2017, Petitioner contacted Noridian to try to resolve the deactivation.  Id.; see also P. Br. (referencing P. Exs. 1, 2).3  During that period, Noridian staff informed Petitioner that he needed to submit a new enrollment application.  CMS Ex. 2 at 2.  Nevertheless, Noridian did not receive a reenrollment application from Petitioner until August 2, 2019.  CMS Exs. 1, 6.  On August 7, 2019, Noridian emailed Petitioner a request for additional information.  CMS Ex. 5.  On August 15, 2019, Petitioner faxed Noridian the requested information.  CMS Ex. 4.  By letter dated August 22, 2019, Noridian approved the application effective August 2, 2019, with retroactive billing privileges effective July 3, 2019.4   CMS Ex. 3.

In his timely-filed reconsideration request, Petitioner asked that his Medicare billing privileges be reinstated effective January 25, 2017, the date of his deactivation.  CMS Ex. 2 at 2.  Petitioner asserted that his enrollment should not have been deactivated because he had submitted claims for payment within the 12 months preceding deactivation.  Id.  In response, Noridian issued an unfavorable reconsidered determination that reaffirmed the August 2, 2019 effective date with retroactive billing privileges effective July 3, 2019.  CMS Ex. 1 at 4.

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Petitioner requested a hearing before an administrative law judge to challenge Noridian’s unfavorable reconsidered determination.5   RFH.  I was designated to hear and decide this case.  On March 9, 2020, my office acknowledged receipt of Petitioner’s hearing request and provided a copy of my Standing Prehearing Order (Prehearing Order).  The Prehearing Order required the parties to file a prehearing exchange consisting of a brief and any supporting documents, including any Motion to Dismiss or Motion for Summary Judgment.  Prehearing Order ¶ 4.  CMS filed a brief, which incorporated a motion for summary judgment, and six proposed exhibits (CMS Exs. 1-6).  Petitioner filed a brief and four proposed exhibits (P. Exs. 1‑4).

Neither party objected to the exhibits proposed by the opposing party.6   Therefore, in the absence of objection, I admit CMS Exs. 1-6 and P. Exs. 1-4.  Neither CMS nor Petitioner offered the written direct testimony of any witness as part of the pre-hearing exchange.  As I informed the parties in my Prehearing Order, “[a]n in-person hearing to cross-examine witnesses will be necessary only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine.”  Prehearing Order ¶ 10.  Therefore, an in-person hearing is not necessary, and I decide this case based on the parties’ written submissions, without regard to whether the standards for summary judgment are satisfied.

II.   Issue

The issue in this case is whether Noridian, acting on behalf of CMS, properly established August 2, 2019, as the effective date of Petitioner’s enrollment in the Medicare program.

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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 Legal Authority

The Act authorizes the Secretary of Health and Human Services to promulgate regulations governing the enrollment process for providers and suppliers.  Act §§ 1102, 1866(j) (42 U.S.C. §§ 1302, 1395cc(j)).  A “supplier” is “a physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services” under the Medicare provisions of the Act.  Act § 1861(d) (42 U.S.C. § 1395x(d)); see also Act § 1861(u) (42 U.S.C. § 1395x(u)).

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 define “Enroll/Enrollment” as “the process that Medicare uses to establish eligibility to submit claims for Medicare covered items and services.”  42 C.F.R. § 424.502.  A provider or supplier seeking billing privileges under the Medicare program must “submit enrollment information on the applicable enrollment application.  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 then establishes an effective date for billing privileges consistent with 42 C.F.R. § 424.520 and may permit retrospective billing as provided in 42 C.F.R. § 424.521.

CMS sets the effective date of enrollment in accordance with the following:

The effective date for billing privileges for physicians, non‑physician practitioners, physician and non-physician practitioner organizations, and ambulance suppliers is the later of –

(1) The date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or

(2) The date that the supplier first began furnishing services at a new practice location.

42 C.F.R. § 424.520(d).  Retrospective billing privileges may be granted when:

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the physician, non-physician practitioner, physician or non-physician organization, and ambulance supplier has met all program requirements, including State licensure requirements, and services were provided at the enrolled practice location for up to –

(1)  Thirty days prior to their effective date if circumstances precluded enrollment in advance of providing services to Medicare beneficiaries; or

(2)  Ninety days prior to their effective date if a Presidentially-declared disaster under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (Stafford Act) precluded enrollment in advance of providing services to Medicare beneficiaries.

42 C.F.R. § 424.521(a).

CMS may deactivate the Medicare billing privileges of a provider or supplier if –

[t]he provider or supplier does not submit any Medicare claims for 12 consecutive calendar months.  The 12 month period will begin the 1st day of the 1st month without a claims submission through the last day of the 12th month without a submitted claim.

42 C.F.R. § 424.540(a)(1).  “Deactivate” means that “the provider or supplier’s billing privileges were stopped, but can be restored upon the submission of updated information.  42 C.F.R. § 424.502.  The effective date of reenrollment is dictated by 42 C.F.R. § 424.520(d), consistent with initial enrollment.

B. Findings of Fact and Conclusions of Law7

1. On August 2, 2019, Noridian received Petitioner’s application to enroll in Medicare and subsequently approved that application.

2. Petitioner’s effective date of Medicare enrollment is August 2, 2019, with retrospective billing privileges as of July 3, 2019.

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The effective date of Medicare enrollment and billing privileges for physicians, non-physician practitioners, and physician or non-physician practitioner organizations is the later of the “date of filing” or the date the supplier first began furnishing services at a new practice location.  42 C.F.R. § 424.520(d).  The “date of filing” is the date that the Medicare contractor “receives” a signed enrollment application that the Medicare contractor is able to process to approval.  73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008); Donald Dolce, M.D., DAB No. 2685 at 8 (2016).  When a contractor approves an enrollment application, it may allow retrospective billing for up to 30 days prior to the effective date established under 42 C.F.R. § 424.520 for a physician supplier who meets all program requirements and is providing Medicare-covered services.  42 C.F.R. § 424.521(a)(1).

Noridian received an enrollment application from Petitioner on August 2, 2019.  CMS Ex. 6 at 1.  Noridian subsequently approved that application.  CMS Ex. 3.  Accordingly, as required by regulation, the effective date of Petitioner’s Medicare enrollment is August 2, 2019.  42 C.F.R. § 424.520(d).  Additionally, Noridian granted Petitioner retrospective billing privileges beginning July 3, 2019, the full 30 days permitted by regulation.  CMS Ex. 1 at 4; 42 C.F.R. § 424.521(a)(1).

3. I have no authority to review the deactivation of Petitioner’s Medicare enrollment and billing privileges.

Petitioner argues that Noridian should not have deactivated his Medicare billing privileges because, contrary to Noridian’s assertion, he did submit claims to Medicare during the year preceding the deactivation.  P. Br. at 1; see also P. Ex. 3.  Petitioner explains that he contacted Noridian staff in an effort to demonstrate that he had submitted such claims.  I have no reason to doubt Petitioner’s claim that Noridian staff acknowledged that his privileges should not have been deactivated.  See P. Br. at 1.  Unfortunately, even if Noridian erred in deactivating Petitioner’s Medicare enrollment, this does not change the outcome in this case.  That is because I do not have jurisdiction to review Noridian’s deactivation of Petitioner’s Medicare billing privileges.

Administrative Law Judges may only exercise the authority delegated by regulation.  The applicable regulations authorize me to review reconsidered determinations of “initial determinations.”  42 C.F.R. §§ 498.3, 498.5.  However, deactivation is not such an “initial determination” and deactivations have a separate review process.  See 42 C.F.R. §§ 424.545(b), 498.3(b); see also Willie Goffney, Jr., M.D., DAB No. 2763 at 4-5 (2017).  Thus, even if Petitioner in fact submitted claims during the year prior to his deactivation, I am not authorized to overrule the deactivation.

As the appellate decision in the case of James Shepard, M.D. explained, providers and suppliers may not challenge indirectly an action for which the regulations prohibit direct administrative review.  DAB No. 2793 at 8 (2017).  The Shepard decision held that the

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supplier could not obtain review of a CMS contractor’s rejection of a previous enrollment application by challenging the effective date of enrollment based on a later approved application.  For the same reasons articulated in Shepard, Petitioner’s arguments in the present case amount to a backdoor challenge to a contractor determination – here, deactivation – for which there are no administrative appeal rights.  See id.  Nor do Petitioner’s remaining arguments provide a basis to change the effective date of his enrollment.

4. Petitioner’s equitable arguments are not a basis to change the effective date of his reactivated Medicare enrollment.

Petitioner explains that his communications with Noridian and, ultimately, his application to reinstate his Medicare enrollment, were delayed and complicated by difficult family circumstances.  P. Br. at 1-3.  Petitioner additionally argues that he should be compensated for services he provided to Medicare beneficiaries in good faith.  Id. at 3.  To the extent Petitioner’s argument is that I should grant him an earlier effective date based on principles of fairness, such general appeals to equity are not a basis to overturn Noridian’s determination in this case.  While I regret Petitioner’s family circumstances and the seeming unfairness of his deactivation, the result in this case is compelled by the regulations.  I am “‘bound by applicable statutes and regulations and [have] no authority to make exceptions to their applicability’ on fairness or other equitable grounds.”  Shepard, DAB No. 2793 at 9 (quoting Vijendra Dave, M.D., DAB No. 2672 at 8 (2016)).  Moreover, an administrative law judge is not authorized to provide equitable relief by reimbursing or enrolling a supplier that does not meet statutory or regulatory requirements.  US Ultrasound, DAB No. 2302 at 8 (2010) (citing Regency on the Lake, DAB No. 2205 (2008)).

IV.   Conclusion

For the reasons explained above, I affirm Noridian’s determination that the effective date of Petitioner’s enrollment in Medicare is August 2, 2019, with retrospective billing privileges effective July 3, 2019.  I deny CMS’s motion for summary judgment as moot.

1. Petitioner is the sole proprietor of his practice, Steppingstone Counseling.  See, e.g. CMS Exhibit (Ex.) 6 at 3, 5.  The enrollment record at issue in this case is associated with Petitioner individually.  CMS Ex.3 at 1.  Accordingly, in this decision I refer to a single Petitioner.
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2. CMS Ex. 2 is a copy of Petitioner’s request for reconsideration of Noridian’s effective date determination.  Petitioner also submitted the reconsideration request as Petitioner (P.) Ex. 1.
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3. P. Ex. 2 is a resubmitted copy of the Request for Hearing (RFH).
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4. Pursuant to the regulations, the effective date of enrollment is the date the contractor receives an application that is subsequently processed to approval, which in this case is August 2, 2019.  42 C.F.R. § 424.520(d).  The initial determination incorrectly identifies July 3, 2019, as the effective date of enrollment.  CMS Ex. 3 at 1.  As the reconsidered determination correctly states, July 3, 2019, is the effective date of retroactive billing privileges as allowed under 42 C.F.R. § 424.521(a).  CMS Ex. 1 at 4.
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5. The reconsidered determination is dated November 20, 2019.  CMS Ex. 1 at 1.  Petitioner’s hearing request is dated February 23, 2020, and was received by my office on February 28, 2020.  In his hearing request, Petitioner asserts that he did not receive the reconsidered determination until December 31, 2019.  CMS does not dispute the date of receipt.  CMS Br. at 3.  I therefore find that Petitioner submitted his hearing request within 60 days after receiving the reconsidered determination, as provided in 42 C.F.R. § 498.40(a)(2).
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6. Petitioner’s proposed exhibits may have been objectionable on various grounds, in that they duplicate material already in the record or may be new evidence not previously submitted at the reconsideration level of review.  See Prehearing Order ¶ 4.c.iii; see also 42 C.F.R. § 498.56(e).  However, because Petitioner is self-represented in this proceeding, and because CMS has not objected, I admit all the exhibits in the interest of creating a complete record.
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7. My findings of fact and conclusions of law appear as numbered headings in bold italic type.
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