Nicole Hamel P.T., DAB CR6141 (2022)

DECISION

Petitioner, Nicole Hamel P.T., applied to reassign her billing privileges to First Coast Service Options, Inc. (First Coast), an administrative contractor for Respondent, the Centers for Medicare & Medicaid Services (CMS).  First Coast approved this application and determined November 6, 2019 to be the effective date of reassignment of Petitioner’s billing privileges.  First Coast also permitted 90 days of retrospective billing for this reassignment.  Petitioner disputes the effective date of reassignment.  As explained herein, I affirm First Coast’s effective date determination.  

I.        Background

On November 6, 2019, First Coast received an electronically submitted application from Petitioner to reassign her Medicare billing privileges to her group practice, Evolution Medical Associates.  CMS Ex. 2 at 1.  On December 5, 2019, First Coast notified Petitioner it had approved her reassignment of benefits to Evolution with an “effective

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date” of August 8, 2019.¹  CMS Ex. 3 at 1-2.  Petitioner sought reconsideration, asking that the reassignment to be effective August 1, 2019. CMS Ex. 4 at 1.  In a reconsidered determination dated January 30, 2020, First Coast affirmed its effective date determination and clarified that the August 8 “effective date” was based on a “disaster relief instruction . . . allowing an effective date up to 90 days back from the application receipt date.”  CMS Ex. 1 at 1-2; see also 42 C.F.R. § 424.521(a)(1)(ii). 

Petitioner timely sought a hearing before an Administrative Law Judge in the Civil Remedies Division, and I was designated to hear and decide this case.  On March 17, 2020, I issued an Acknowledgment and Prehearing Order (Pre-Hearing Order) that required each party to file arguments and supporting documents in a pre-hearing exchange.  Pre-Hearing Order ¶ 5.  CMS timely filed its Combined Pre-Hearing Brief and Motion for Summary Judgment (CMS Br.) with four proposed exhibits (CMS Exs. 1-4).  Petitioner did not file an exchange as directed, but in response to an Order to Show Cause, indicated she wished to rely on her previously submitted argument and evidence.  P. Resp. to Order to Show Cause, DAB E-File Dkt. No. C-20-371, Doc. No. 8 at 1-2 (indicating Petitioner had “forwarded all our exhibits” at the start of the appeals process and reiterating arguments contained in Petitioner’s hearing request).  I accepted Petitioner’s explanation for failing to timely file a pre-hearing exchange and discharged the Order to Show Cause. 

II.        Admission of Exhibits

Petitioner did not object to CMS’s proposed exhibits.  I therefore admit CMS Exhibits 1 through 4 into evidence. 

Petitioner relies on arguments and evidence found in her hearing request, which included an attachment with 16 pages of documentary evidence (P. Attach.).  DAB E-File Dkt. No. C-20-371, Doc. No. 1b.  Several of those pages are included in CMS’s exchange and are therefore duplicative.  Compare P. Attach. at 7, 10-16 with CMS Exs. 3-4.  The remaining documents purport to document that Petitioner’s earlier but unsuccessful attempts to reassign her benefits were stymied by incorrect instructions provided by First Coast representatives.  P. Attach. at 1-6, 8 (including various website printouts from October 2019).  CMS objects to those documents on grounds that they constitute new

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evidence submitted without good cause.  CMS Br. at 5.  Petitioner did not respond to CMS’s objection.

The regulations do not permit Petitioner to offer new documentary evidence before me without first showing good cause for failing to present that evidence previously to CMS.  42 C.F.R. § 498.56(e); Pre-Hearing Order ¶ 7.  I must exclude any new evidence for which a showing of good cause has not been made. 42 C.F.R. § 498.56(e).  Here, there is no dispute that some of these documents were not provided to CMS before the pendency of this appeal.  Moreover, Petitioner has not articulated good cause for submitting them for the first time before me.  Finally, as I discuss herein, the documents provided by Petitioner do not corroborate her claim that First Coast employees misdirected her.  The documents therefore have limited relevance to the issue I must resolve.  I therefore decline to admit P. Attach. at 1-6 and 8 into the record.  The remaining documents are otherwise rejected as duplicative of documents already introduced by CMS, which I have considered.  

III.     Decision on the Record

Neither party offered written direct testimony of a witness as part of its pre‑hearing exchange, meaning an in-person hearing is not necessary in this matter.  Pre‑Hearing Order ¶¶ 8-10; Civ. Remedies Div. P. §§ 16(b), 19(b).  I therefore decide this case on the record based on the parties’ written submissions and arguments.  Civ. Remedies Div. P. § 19(d).  CMS’s motion for summary judgment is denied as moot.  

IV.     Issue

Whether First Coast, acting on behalf of CMS, properly established November 6, 2019 as the effective date for reassignment of Petitioner’s Medicare benefits.  

V.       Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2); see also Soc. Sec. Act (Act) § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)). 

VI.     Findings of Fact, Conclusions of Law, and Analysis

A.   Applicable Law

Petitioner participates in the Medicare program as a “supplier” of services.  Act § 1861(d); 42 C.F.R. § 498.2.  To receive Medicare payments for 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

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to Medicare beneficiaries; (3) identify and confirm a supplier’s owners and practice location; and (4) grant the supplier Medicare billing privileges.  42 C.F.R. § 424.502.  After a prospective supplier submits an approved Medicare enrollment application, CMS establishes an effective date for billing privileges and may permit retrospective billing pursuant to 42 C.F.R. § 424.521(a). 

The effective date for billing privileges for suppliers like Petitioner 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).  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). 

A Medicare beneficiary may assign the right to receive Medicare Part B benefits for covered medical services to an enrolled supplier who delivers those services.  Act § 1842(b)(3)(B)(ii) (42 U.S.C. § 1395u(b)(3)(B)(ii)); 42 C.F.R. § 424.55.  In certain circumstances, a supplier who has received an assignment of benefits may reassign those benefits to an employer, or to an individual or entity with which the supplier has a contractual arrangement.  Act § 1842(b)(6) (42 U.S.C. § 1395u(b)(6)); 42 C.F.R. § 424.80(b)(1)‑(2).  To reassign Medicare benefits, a supplier must submit and obtain CMS’s approval of a reassignment application.  Gaurav Lakhanpal, MD, DAB No. 2951 at 1-2 (2019) (citing 71 Fed. Reg. 20,754, 20,756 (Apr. 21, 2006)).  CMS applies the effective date rules at 42 C.F.R. §§ 424.520(d) and 424.521(a)(1) to reassignments of Medicare benefits.  See Medicare Program Integrity Manual (MPIM) (CMS Pub. 100-08) §§ 15.5.20(E)(3), 15.17. 

B.   Analysis

1. The effective date of Petitioner’s reassignment of Medicare billing privileges is November 6, 2019, as that is the date First Coast received the application it subsequently processed to approval. 

Petitioner submitted a reassignment application received by First Coast on November 6, 2019 that the contractor ultimately processed to approval.  CMS Ex. 2 at 1; CMS Ex. 3 at 1.  The record before me reflects no receipt of an earlier application that First Coast subsequently approved.  Therefore, November 6, 2019, is the correct effective date of reassignment for Petitioner’s billing privileges.  Urology Grp. of NJ, LLC, DAB No. 2860 at 7-9 (2018); Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017); MPIM §§ 15.5.20(E)(3), 15.17. 

First Coast also granted Petitioner retrospective billing beginning August 8, 2019, or 90 days before the effective date of reassignment.  CMS Ex. 1 at 2; 42 C.F.R.

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§ 424.521(a)(1).  First Coast’s reconsidered determination specified the August 8, 2019 date was “issued based on a disaster relief instruction which was in place at the time allowing an effective date up to 90 days back from the application receipt date,” which is consistent with 42 C.F.R. § 424.521(a)(1)(ii).²  CMS Ex. 1 at 2. 

2. I have no authority to consider Petitioner’s equitable arguments. 

Petitioner does not assert that she filed a reassignment application before November 6, 2019.  She instead argues that her delay in filing an application that could be approved resulted from incorrect instructions she received from multiple First Coast representatives after she began seeking to reassign her billing privileges to her group practice in July 2019.  P. Hearing Req. at 1.  Petitioner specifically cites her October 21, 2019 call with “Will, Rae and Cynthia” (presumably First Coast employees) and claims she submitted phone notes and printouts of the steps completed that document their incorrect instructions.  Id.  Finally, Petitioner claims the loss of income resulting from the effective date of reassignment established by First Coast will be “crippling.”  Id. 

Although Petitioner did not detail the instructions she received or explain how they were incorrect, I am sympathetic to Petitioner’s claim and do not find it implausible.  But Petitioner’s request to modify the reassignment effective date based on receiving incorrect instructions (or to avoid economic hardship) have no basis in law and are therefore pleas for equitable relief, which I do not have the authority to grant.  See, e.g., US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”); Pepper Hill Nursing & Rehab. Ctr., LLC, DAB No. 2395 at 11 (2011) (holding the ALJ and Board were not authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements). 

My jurisdiction is instead limited to review of CMS’s determination of the effective date of Petitioner’s reassignment application under 42 C.F.R. § 424.520(d).  As I have explained, First Coast properly determined the effective date of reassignment to be November 6, 2019, as that was the date First Coast received a reassignment application from Petitioner that it was able to successfully approve.  First Coast further granted Petitioner 90 days of retrospective billing, the maximum period permitted pursuant to 42 C.F.R. § 424.521(a)(1)(ii).  In other words, Petitioner has received the maximum period of billing privileges possible that could result from the reassignment application she filed on November 6, 2019.

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VII.    Conclusion

For the foregoing reasons, I affirm CMS’s determination of the effective date of Petitioner’s reassignment of Medicare billing privileges to be November 6, 2019, with retrospective billing permitted from August 8, 2019.

Endnotes

¹  As I have observed in other decisions concerning effective date determinations, CMS’s contractors persist in mistakenly identifying the retrospective billing date as the effective date; First Coast is no exception.  The regulations distinguish between the effective date and the date from which retrospective billing is permitted.  Compare 42 C.F.R. §§ 424.520(d), with 424.521(a)(1).  Consistent with the regulations, I use the term “effective date” in this decision to refer to the date First Coast received an application from Petitioner it eventually approved, not the date from which it authorized retrospective billing.

²  This regulation allows up to 90 days of retrospective billing, as opposed to the more typical 30 days, when a Presidentially declared disaster under the Stafford Act precludes a supplier’s enrollment in advance of providing services to Medicare beneficiaries.  42 C.F.R. § 424.521(a)(1)(ii).