Emily Duffy, NP, DAB CR6017 (2022)

DECISION

Petitioner, Emily Duffy, NP, is a nurse practitioner.  She applied to enroll in the Medicare program and to reassign her billing privileges to Southern Virginia Hospitalists, LLC, the organization that employs her.  The Centers for Medicare & Medicaid Services (CMS) granted her applications with an effective date of February 8, 2019, and a retrospective billing date of January 9, 2019.  Petitioner timely appeals the effective date.

Because Petitioner filed her subsequently approved enrollment applications on February 8, 2019, I find that February 8, 2019 is the correct effective date of her enrollment.  Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 at 6-7 (2019); Urology Grp. of NJ, LLC, DAB No. 2860 at 7-9 (2018); Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017), aff’d sub nom. Goffney v. Azar, No. CV 17-8032 MRW (C.D. Cal. Sept. 25, 2019).

I. Background and Procedural History

In a letter on March 8, 2019, the Medicare administrative contractor, Palmetto GBA (Palmetto), advised Petitioner that it approved her Medicare enrollment with an “effective date” of January 9, 2019.  CMS Ex. 3.  In fact, as explained below, the contractor was

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granting Petitioner a retrospective billing date of January 9, 2019; the effective date of Petitioner’s enrollment is February 8, 2019.  Petitioner sought reconsideration, requesting an effective date of September 5, 2018.  CMS Ex. 2.

In a reconsidered determination, dated August 13, 2019, a contractor hearing officer affirmed the initial determination.  CMS Ex. 1 at 2.  The reconsideration determination also concluded (in error) that January 9, 2019 was the correct effective date.  CMS Ex. 1 at 2.  In fact, January 9, 2019, was the retrospective billing date.

On August 23, 2019, Petitioner timely filed a request for a hearing with the Departmental Appeals Board, Civil Remedies Division.  The case was originally assigned to Administrative Law Judge Bill Thomas.  On September 10, 2019, Judge Thomas issued an Acknowledgment and Pre-hearing Order (Pre-hearing Order).  On December 3, 2021, the case was reassigned to me.  I adopt the September 10, 2019 Pre-hearing Order.  CMS has submitted a brief (CMS Br.) and seven exhibits (CMS Exs. 1-7).  Petitioner has submitted a brief (P. Br.) and four exhibits (P. Exs. 1-4).  Both parties filed motions for summary judgment.

Because neither party objected to any of the proposed exhibits, I admit CMS Exs. 1-7 and P. Exs. 1-4 into the record.  Pre-hearing Order ¶ 8; Civil Remedies Division Procedures (CRDP) § 14(e).

The Pre-hearing Order advised the parties that an in-person hearing would only be necessary if a party submitted the written direct testimony of a proposed witness and the opposing party requested an opportunity to cross-examine the witness.  Pre-hearing Order ¶¶ 9-11; see Vandalia Park, DAB No. 1940 (2004); Pac. Regency Arvin, DAB No. 1823 at 8 (2002) (holding that the use of written direct testimony for witnesses is permissible so long as the opposing party has the opportunity to cross-examine those witnesses).  CMS has not submitted any proposed witnesses.  Petitioner has submitted a list of three proposed witnesses but has not submitted any sworn direct testimony for those witnesses.  Therefore, a hearing in this case is unnecessary and I decide this case based on the written record.  CRDP §§ 16(b), 19(b), (d).  The motions for summary judgment are therefore moot.

II. Issue

Whether CMS had a legitimate basis to assign February 8, 2019, as the effective date for Petitioner’s Medicare billing privileges and reassignment of Medicare benefits, with a retrospective billing period commencing on January 9, 2019.

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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 42 U.S.C. § 1395cc(j)(8).

IV. Discussion

A. Applicable Law

Petitioner participates in the Medicare program as a “supplier” of services.  Social Security Act § 1861(d); 42 C.F.R. § 498.2.  To receive Medicare payments for the services furnished to program beneficiaries, a prospective supplier must enroll in the program.  42 C.F.R. § 424.505.  “Enrollment” is the process by which CMS and its contractors:  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’s Medicare billing privileges. 42 C.F.R. § 424.502.

To enroll, 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. § 424.502.1   When CMS determines that a prospective supplier meets the applicable enrollment requirements, it grants Medicare billing privileges, which means that the supplier can submit claims and receive payments from Medicare for covered services provided to program beneficiaries.  The effective date for its billing privileges “is the later of the date of filing” a subsequently-approved enrollment application or “the date that the supplier first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d) (emphasis added).

If a non-physician practitioner meets all program requirements, CMS may allow the practitioner to bill retrospectively for up to 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).

Medicare contractors have created much confusion for suppliers as they often establish the retrospective billing date as the effective date.  The distinction is important; I have the authority to review “the effective date of . . . supplier approval.”  42 C.F.R. § 498.3(b)(15).  The regulations provide no authority for me to review CMS’s determination regarding a retrospective billing date.

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B. Findings of Fact and Conclusions of Law

The effective date of Petitioner’s reassignment of benefits is February 8, 2019, which is the date of receipt of the Medicare enrollment application that Palmetto processed to approval, and retrospective billing privileges are authorized beginning January 9, 2019, pursuant to 42 C.F.R. § 424.521(a)(1).

Petitioner submitted enrollment (CMS 855I) and reassignment (CMS 855R) applications on October 3, 2018.  P. Ex. 1.2   As the applications did not include a copy of a nurse practitioner certification for Petitioner, a request for additional information dated November 14, 2018, was mailed to Petitioner.  CMS Ex. 6.  Petitioner did not respond to that request within the timeframe provided and the enrollment application was denied on February 4, 2019.  CMS Ex. 5; P. Ex. 2.  Palmetto also denied Petitioner’s reassignment application because the signature on the application was different from the authorized signature on file with Palmetto and directed Petitioner to submit a CMS 855B form.  CMS Ex. 5; P. Ex. 2.  Petitioner filed subsequent applications and a CMS 855B, which Palmetto received on February 8, 2019 and approved on March 8, 2019.  CMS Ex. 1 at 2; CMS Ex. 3.  Thus, pursuant to section 424.520(d), the date Petitioner filed her subsequently-approved enrollment applications, February 8, 2019, is the correct effective date of enrollment.  Sokoloff, DAB No. 2972 at 6-7 (2019); Urology Grp., DAB No. 2860 at 7-9; Goffney, DAB No. 2763 at 7.

Petitioner, nevertheless, asks for September 5, 2018 as her enrollment date because she worked diligently to resolve the issues with her applications.  P. Br. at 1, 6.  She states she submitted her first applications on October 3, 2018, requesting an effective date of September 5, 2018, for both the enrollment and reassignment.  P. Br. at 2; P. Ex. 1 at 26, 27.  However, the contractor rejected those applications because Petitioner did not submit, within 30 days, the requested additional information and the signature on the reassignment application did not match the authorized signature Palmetto had on file.  CMS Ex. 5; P. Ex. 2.

Petitioner states the contractor misinformed her office of the information request during phone inquiries checking on the status of her applications.  P. Br. at 2, 5-6.  Petitioner explained that during two different calls, Palmetto representatives confirmed that Palmetto was processing the applications but did not advise Petitioner that Palmetto required additional documentation.  P. Br. at 2, 6.  Petitioner further states that the first time Palmetto informed Petitioner’s office of the request for additional documentation was during a third call on December 26, 2018.  P. Br. at 3, 6.  The Palmetto representative advised Petitioner’s office of the November 14, 2018 letter, but Petitioner

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alleges non-receipt of the November 14, 2018 letter that requested the additional information.  P. Br. at 3, 6.  Following the December 26, 2018 call, Petitioner’s office immediately emailed a copy of Petitioner’s nurse practitioner certification to Palmetto.  P. Ex. 4.  Petitioner alleges these as reasons that the information requested was not provided in a timely manner.  P. Br at 1.

Petitioner also argues that the signatures on the applications were appropriate.  P. Br. at 7.  Petitioner, noting Palmetto’s February 4, 2019 letter (P. Ex. 2), explained that the person who signed the October 3, 2018 applications changed her name in November 2018 and Palmetto had not reviewed the applications until after the person who signed the application had legally changed her name and updated the authorized signature name with Palmetto.  P. Br. at 7.

I have no authority to review the rejection of an enrollment application.  42 C.F.R. § 424.525(d); Wishon Radiological Med. Grp., Inc., DAB No. 2941 at 6-7 (2019); James Shepard, M.D., DAB No. 2793 at 8 (2017).  Nor may I grant Petitioner an earlier effective date based on any equitable or policy arguments.  Sokoloff, DAB No. 2972 at 9.

On February 8, 2019, the Medicare contractor received Petitioner’s enrollment and reassignment applications, CMS Forms 855I and 855R.  CMS Ex. 1 at 2.  The contractor subsequently approved the enrollment and reassignment applications.  CMS Ex. 3.  Thus, the date Petitioner filed her subsequently-approved enrollment application, February 8, 2019, is the correct effective date of her enrollment.

V. Conclusion

Petitioner filed her subsequently-approved enrollment applications on February 8, 2019.  Thus, February 8, 2019 is her Medicare enrollment effective date, with a retrospective billing date of January 9, 2019.

1. CMS’s electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).
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2. Form CMS 855I enrolls physicians and non-physician practitioners. Form CMS 855R reassigns the practitioner’s billing privileges to a Medicare-eligible entity, which may submit claims and receive payment for Medicare services provided by the practitioner.
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