Apollo Medflight, LLC, DAB CR6041 (2022)

DECISION

Wisconsin Physicians Service Insurance Corporation (WPS), a Medicare administrative contractor for the Centers for Medicare & Medicaid Services (CMS), approved the enrollment application of Apollo MedFlight, LLC (Petitioner) effective March 5, 2020, with retrospective billing privileges effective February 4, 2020.  Petitioner requested a hearing before an administrative law judge because it seeks an earlier retrospective billing date of December 17, 2019.  Because WPS approved Petitioner's enrollment application that it received on March 5, 2020, it correctly determined Petitioner's effective date of enrollment to be March 5, 2020.  WPS exercised its discretion to grant Petitioner retrospective billing privileges beginning on February 4, 2020, consistent with applicable regulations.  Therefore, I affirm the effective date determination.

I.  Background

Petitioner is a Medicare supplier of air ambulance services located in Kearney, Nebraska.  CMS Exhibit (Ex.) 2 at 1, 3.  On March 5, 2020, WPS received a Medicare enrollment application from Petitioner, which was submitted through the Provider Enrollment, Chain and Ownership System (PECOS).  Id. at 1.  By letter dated May 2, 2020, WPS approved

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the application.  CMS Ex. 3.  WPS's letter stated that the "Effective Date" was "February 4, 2020."  Id. at 1.  As I explain below, WPS incorrectly identified "February 4, 2020" as the effective date of Petitioner's enrollment.  The actual effective date of Petitioner's enrollment is March 5, 2020, and February 4, 2020, is the date on which Petitioner's retrospective billing period began.

In its timely-filed reconsideration request, Petitioner sought an earlier retrospective billing date of December 17, 2019, the date it first provided ambulance services to Medicare beneficiaries.  CMS Ex. 4 at 3.  Petitioner described circumstances which it claims precluded it from submitting its application sooner.  Among other things, Petitioner asserted that President Trump had declared a national disaster as a result of the COVID-19 pandemic.  Id. at 5.  Petitioner argued that, because of President Trump's disaster declaration, the 90-day retrospective billing period referenced in 42 C.F.R. § 424.521(a)(2) was applicable to its case, and it should thus be granted an earlier retrospective billing date.  Id.  In response, WPS issued an unfavorable reconsidered determination dated July 15, 2020, in which it reaffirmed that Petitioner's retrospective billing privileges began effective February 4, 2020.  CMS Ex. 1 at 2-3.

On September 14, 2020, Petitioner requested a hearing before an administrative law judge to challenge WPS's unfavorable reconsidered determination.  Request for Hearing (RFH).  I was designated to hear and decide this case.  On September 17, 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 (CMS Br.), and five proposed exhibits (CMS Exs. 1-5).  Petitioner cross-moved for summary judgment (P. Br.) and filed three proposed exhibits (P. Exs. 1‑3).

Neither party objected to the exhibits proposed by the opposing party.  Therefore, in the absence of objection, I admit CMS Exs. 1-5 and P. Exs. 1-3.

CMS did not offer the written direct testimony of any witnesses.  Petitioner offered the written direct testimony of one witness as part of its 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.  CMS did not request to cross-examine Petitioner's witness.  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.  I deny the parties' cross-motions for summary judgment as moot.

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II.  Issue

The issue in this case is whether WPS, acting on behalf of CMS, properly established March 5, 2020, as the effective date of Petitioner's enrollment in the Medicare program.

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

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

42 C.F.R. § 424.520(d).

Retrospective billing privileges may be granted when –

[T]he 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).

B. Findings of Fact and Conclusions of Law1

1. On March 5, 2020, WPS received Petitioner's application to enroll in Medicare and subsequently approved that application.
2. Petitioner's effective date of Medicare enrollment is March 5, 2020.
3. WPS granted Petitioner retrospective billing privileges effective February 4, 2020.

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

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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) ("receipt, rather than mailing, of an application determines the effective date of enrollment").  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 supplier that meets all program requirements and is providing Medicare-covered services.  42 C.F.R. § 424.521(a)(1).  The regulations also authorize a contractor to permit retrospective billing for up to 90 days prior to the effective date "if a Presidentially-declared disaster under the Robert T. Stafford Act . . . precluded enrollment in advance of providing services to Medicare beneficiaries."  42 C.F.R. § 424.521(a)(2).

In the initial determination, WPS incorrectly identified February 4, 2020, as Petitioner's "effective date" of enrollment.  CMS Ex. 3 at 1.  In the reconsidered determination, the hearing officer did not correct this error, but stated, somewhat ambiguously, that "the retrospective billing date was applied and the effective date February 4, 2020, was issued correctly."  CMS Ex. 1 at 2-3.  In mischaracterizing the February 4, 2020 date, WPS conflated the effective date of enrollment with the date from which Petitioner was permitted to retrospectively bill for Medicare services.

Pursuant to 42 C.F.R. § 424.520(d), the "effective date" of enrollment is the date WPS received an enrollment application from Petitioner that it eventually approved.  In this case, WPS received Petitioner's enrollment application on March 5, 2020, and subsequently approved that application.  Thus, March 5, 2020 is the effective date of Petitioner's enrollment, as defined by regulation.  Pursuant to 42 C.F.R. § 424.521(a)(1), CMS may permit a supplier to "retrospectively bill" for services for up to 30 days prior to that effective date.  Accordingly, February 4, 2020 – 30 days prior to March 5, 2020 – is the date from which Petitioner was granted retrospective billing privileges.2

4. I have no authority to review WPS's determination regarding the retrospective billing date.

Petitioner agrees that, by regulation, its effective date of enrollment is March 5, 2020.  P. Br. at 2 n.1.  However, Petitioner argues that WPS failed to establish the correct date for retrospective billing.  Id. at 4-7.  In Petitioner's view, it is entitled to the 90-day retrospective billing period described in 42 C.F.R. § 424.521(a)(2) because a

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Presidentially-declared disaster under the Stafford Act existed at the time of its enrollment.  In support of this argument, Petitioner points to President Trump's proclamation, dated March 13, 2020, that declared a national disaster under the Stafford Act as a result of the COVID-19 pandemic.  P. Br. at 4; see also CMS Ex. 4 at 11-13; CMS Ex. 5.  Petitioner contends that, because the COVID-19 pandemic affected its ability to complete its Medicare enrollment application timely, WPS should have granted it retrospective billing privileges effective December 17, 2019.  P. Br. at 9-10.  Although I address the merits of this argument in the alternative in the following section of this decision, my holding in this case is that I lack jurisdiction to decide the date from which retrospective billing is permitted.

A petitioner in this forum may only request review of certain "initial determinations" specified at 42 C.F.R. § 498.3(b).  See 42 C.F.R. § 498.3(a)(1).  The date on which a supplier's or provider's retrospective billing privileges begin is not listed as such an initial determination.  42 C.F.R. § 498.3(b).  Thus, the regulations do not authorize me to exercise jurisdiction over Petitioner's claim that its retrospective billing period should begin on December 17, 2019.  See Allen Tennison, CRNA, DAB CR5760 at 3 (2020) ("nothing in the regulations gives [an administrative law judge] the authority to review CMS's determinations regarding retrospective billing").

Moreover, I note that 42 C.F.R. § 424.521(a)(2) does not require CMS to grant retrospective billing privileges to a provider or supplier.  Rather, the regulatory language states that "[t]he providers and suppliers identified in [42 C.F.R. § 424.521(a)(2)] may retrospectively bill for services . . . ." (emphasis added).  This language makes clear that it is entirely within CMS's discretion whether to grant a retrospective billing period at all.  Matters over which CMS exercises discretion fall outside the scope of my review.  Justin Heller, M.D., CR5741 at 6 (2020) ("[t]he decision to grant or deny retrospective billing is within CMS's discretion and [the administrative law judge has] no authority to review it").

I am mindful that many appellate decisions of the Departmental Appeals Board (DAB) hold that administrative law judge decisions "are not precedential" and do not bind other administrative law judges.  See, e.g., Littlefield Hospitality, DAB No. 2756 at 13 (2016) (and cases cited therein).  I nevertheless find the reasoning of the Tennison and Heller decisions persuasive because it is consistent with appellate decisions addressing analogous issues.  As far as I am aware, no appellate decision of the DAB has stated

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unequivocally that the regulations do not authorize administrative review of the date of retrospective billing.3

On the other hand, several appellate decisions hold generally that, where the regulations consign a determination to CMS's discretion, the exercise of that discretion is not subject to administrative review.  See, e.g., Decatur Health Imaging, LLC, DAB No. 2805 at 8 (2017) (there is no appellate review of "CMS's exercise of discretion to take other actions the regulations authorize relating to the enrollment of suppliers and providers"); Douglas Bradley, M.D., DAB No. 2663 at 13 n.13 (2015) ("the reasonableness of CMS's exercise of discretion is not a reviewable issue under any standard of review").  For all these reasons, I conclude that the applicable regulations do not authorize me to review Petitioner's retrospective billing date.

5. Even if I were authorized to review Petitioner's retrospective billing date, I would conclude that Petitioner failed to prove that a Presidentially-declared disaster precluded it from enrolling in Medicare within the meaning of 42 C.F.R. § 424.521(a)(2).

Moreover, even if the regulations authorized administrative law judge review of the date from which retrospective billing is permitted, I would not find that Petitioner had a right to an earlier retrospective billing date.  The record before me does not establish that a Presidentially-declared disaster "precluded [Petitioner's] enrollment in advance of providing services to Medicare beneficiaries" within the meaning of 42 C.F.R. § 424.521(a)(2).  The language of 42 C.F.R. § 424.521(a)(2) requires that a supplier must have been "precluded" from enrolling in Medicare in advance of providing services to Medicare beneficiaries.  According to the Cambridge English Dictionary online, the definition of "preclude" is "to prevent something or make it impossible, or prevent someone from doing something."  https://dictionary.cambridge.org/us/dictionary/english/preclude (last visited February 23, 2022).

In claiming that it was precluded from applying earlier for enrollment due to a Presidentially-declared disaster, i.e., COVID-19, Petitioner cites the declaration of Marc Bennett, Petitioner's Executive Vice-President of Revenue Service.  P. Br. at 9.  In this

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role, Mr. Bennett is "responsible for all federal healthcare payment matters at [Petitioner], including its submission of claims to Medicare and its enrollment as a Medicare supplier."  P. Ex. 1 at ¶¶ 2, 3.  Mr. Bennett's declaration states:

7.  Due to Apollo's normal operations being interrupted as we responded to the evolving COVID-19 emergency, numerous otherwise routine tasks involved in the normal operations of my revenue services team were delayed as it took on the additional tasks and responsibilities involved in our disaster response.

8.  One such task delayed by Apollo MedFlight's disaster response to the COVID-19 pandemic was its submission of the Medicare enrollment that is the subject of this proceeding.

Id. at ¶¶ 7, 8 (emphasis added).  The declaration falls short of establishing that the COVID-19 pandemic precluded Petitioner from enrolling in Medicare.

At most, Mr. Bennett's declaration demonstrates that the COVID-19 pandemic delayed Petitioner's Medicare enrollment application.  There is no allegation anywhere in Mr. Bennett's declaration that the COVID-19 pandemic precluded him or anyone at his company from submitting Petitioner's Medicare enrollment application.  Neither Petitioner nor Mr. Bennett has offered any evidence that the pandemic somehow made it impossible for Petitioner to submit its application before it provided services to Medicare beneficiaries.  The fact that it may have been difficult for Petitioner to file its application does not equate to a finding that it was prevented from filing its application altogether.  And indeed, Petitioner's position is undermined by the very fact that Petitioner did file its Medicare application electronically on March 5, 2020, while the pandemic was ongoing.  Accordingly, Petitioner has not shown that the COVID-19 pandemic "precluded" it from enrolling in Medicare in advance of providing services to Medicare beneficiaries.  For this reason, Petitioner does not qualify for the 90-day retrospective billing provision contained in 42 C.F.R. § 424.521(a)(2).

Petitioner raises several other arguments related to its contention that it is entitled to a 90‑day retrospective billing period pursuant to 42 C.F.R. § 424.521(a)(2).  For example, Petitioner contends that WPS erred in applying guidance contained in the Medicare Program Integrity Manual (MPIM), CMS Pub. No. 100-08, § 15.17(B) (Rev. 492, eff. Jan. 7, 2014) because that provision pertains to retrospective billing under 42 C.F.R. § 424.521(a)(1).  RFH at 2.  Petitioner also contends that the actual "disaster-causing incident," i.e., COVID-19, which was the subject of President Trump's March 13, 2020 disaster declaration, began well before March 13, 2020, and thus already existed at the time Petitioner submitted its Medicare enrollment application on March 5, 2020.  P. Br. at 7.  However, because I have already concluded that Petitioner failed to prove, as a

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factual matter, that the COVID-19 pandemic precluded it from filing its Medicare application, it is not necessary for me to address these arguments.

In summary, I conclude that, pursuant to 42 C.F.R. § 424.520(d), the effective date of Petitioner's Medicare enrollment and billing privileges is March 5, 2020, the date on which WPS received the enrollment application that it subsequently approved.  I find no basis to disturb WPS's determination that Petitioner's retrospective billing privileges began on February 4, 2020, i.e., 30 days prior to March 5, 2020, as permitted by 42 C.F.R. § 424.521(a)(1).

6. I do not have authority to grant equitable relief.

Petitioner explains that it experienced other disruptions unrelated to the COVID-19 pandemic which also contributed to the delay in submitting its Medicare enrollment application.  Petitioner states that a partner at the firm that prepares its Medicare documents had family emergencies, which led to work disruption and delays.  CMS Ex. 4 at 3-4.  Petitioner's alternative explanation amounts to a request for equitable relief.  However, 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)).  Put another way, I may not set aside CMS's lawful exercise of its discretion based on principles of equity or fairness.  See, e.g., Cent. Kan. Cancer Inst., DAB No. 2749 at 10 (2016); see also James Shepard, M.D., DAB No. 2793 at 9 (2017).

V.  Conclusion

For the reasons explained above, I affirm WPS's determination that the effective date of Petitioner's enrollment in Medicare is March 5, 2020, with retrospective billing privileges effective February 4, 2020.

1. My findings of fact and conclusions of law appear as numbered headings in bold italic type.
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2. Petitioner also noticed WPS's error, stating in its brief that "[Petitioner] concedes that WPS should have correctly stated the ‘effective date' as the date of enrollment which was March 5, 2020.  [Petitioner] assumes that what WPS refers to as the effective date is actually the date WPS determined to be [Petitioner's] retrospective billing date."  P. Br. at 2 n.1.  Petitioner aptly commented that this is a common error by the Medicare contractors and that it "is typically corrected by the tribunal on behalf of the contractor."  Id.
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3. The decision in Farzana Naqvi, M.D. and Syed Naqvi, M.D., explicitly declined to address the question of whether a denial of retrospective billing is appealable under 42 C.F.R. Part 498 because the petitioners had not raised the issue in their appeal.  DAB No. 3016 at 8 (2020).  Similarly, the date of retrospective billing was not directly at issue in Wishon Radiological Medical Group, Inc., DAB No. 2941 (2019).  However, a footnote in that decision supports the conclusion that retrospective billing is not subject to administrative review.  Id. at 5 n.3 (the decision to grant retrospective billing "was within CMS's discretion and is not subject to our review").
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