Yakup Akyol, M.D., DAB No. 3017 (2020)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

On February 27, 2020, an Administrative Law Judge (ALJ) determined that November 1, 2017 was the effective date of Yakup Akyol, M.D.’s Medicare billing privileges and reassignment of Medicare benefits.  Yakup Akyol, M.D., DAB CR5547 (ALJ Decision).  Dr. Akyol (Petitioner) and Zwanger-Pesiri Radiology Group, LLP (ZPR), the entity to which Petitioner reassigns his Medicare benefits, filed a request for review of the ALJ’s decision.  Shortly after the appeal was filed, the Board determined that ZPR had no right to appeal the ALJ’s decision and accordingly dismissed its appeal.  For his part, Petitioner identifies no factual or legal error by the ALJ in determining the effective dates of his enrollment and reassignment.  We therefore deny his request for review and affirm the ALJ’s decision.

Legal Background

A physician or other “supplier” of health care services must be enrolled in Medicare in order to bill and receive payment from the program for covered services.  42 C.F.R. § 424.505.  To enroll, a supplier must submit to CMS the appropriate Medicare enrollment application (either the paper application, known as form CMS-855, or an electronic submission).  Id. §§ 424.502 (definition of “enrollment application”), 424.510(d)(1).

When a Medicare enrollment application is approved, CMS sets the “effective date for billing privileges” in accordance with 42 C.F.R. § 424.520(d).  That provision states that the effective date of a physician’s Medicare billing privileges is “the later of . . . [t]he date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor” or “[t]he date that the supplier first began furnishing services at a new practice location.”

CMS may allow a physician (or other supplier) to “retrospectively bill” Medicare for services provided up to “[t]hirty days prior to [the physician’s] effective date if circumstances precluded enrollment in advance of providing services to Medicare

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beneficiaries.”  42 C.F.R. § 424.521(a)(1).  This 30-day period is sometimes called the retrospective billing period.

A Medicare beneficiary may assign the right to receive Medicare Part B benefits for covered medical services to an enrolled physician (or other supplier) who delivers those services.  See 42 C.F.R. § 424.55.  In turn, a physician who receives such assignment may, in some circumstances, reassign the right to Medicare benefits to an employer or entity with which the physician has a contractual relationship.  Id.§§ 424.70(b)(1), 424.80(b)(1)-(2).  In order to reassign Medicare benefits, a physician must submit and obtain CMS’s approval of a reassignment application, known as form CMS-855R.  Gaurav Lakhanpal, MD, DAB No. 2951, at 1-2 (2019) (citing 71 Fed. Reg. 20,754, 20,756 (Apr. 21, 2006)).

The determination of the effective date of a supplier’s Medicare enrollment is an “initial determination” subject to administrative review under 42 C.F.R. Part 498.  See 42 C.F.R. §§ 498.3(a)(1), (b)(15); Victor Alvarez, M.D., DAB No. 2325, at 3 (2010).

Case Background

During 2017, Petitioner filed applications to enroll in Medicare and to reassign Medicare benefits to ZPR.  See CMS Exs. 2, 3, 6, 9, 10.  After rejecting some of the applications, CMS ultimately approved the enrollment and reassignment applications that Petitioner filed electronically (and which CMS received) on November 1, 2017.  CMS Exs. 5, 8, 11.  In its November 20, 2017 letter notifying Petitioner of that approval, CMS advised him that he could bill for services provided on or after October 2, 2017.  CMS Ex. 11, at 1.

Petitioner filed a request for reconsideration, asking CMS to allow him to bill for services furnished earlier than October 2, 2017.  CMS Ex. 12, at 3-4.  On January 18, 2018, CMS denied the reconsideration request.  CMS Ex. 1.  In doing so, CMS clarified that October 2, 2017 was the start of Petitioner’s retrospective billing period – that is, the 30-day period preceding the effective date of Medicare enrollment – and thereby implied that the actual effective date of Petitioner’s Medicare billing privileges was November 1, 2017.  See id. at 2-4 (reciting relevant provisions of 42 C.F.R. §§ 424.520(d) and 424.521 and section 15.17 of the Medicare Program Integrity Manual).  In addition, by stating that Petitioner’s reassignment application was “effective October 2, 2017” in accordance with the “30-day rule based on the received date of the approved application[ ],” id. at 4, CMS implied that November 1, 2017 was also the effective date of Petitioner’s reassignment of Medicare benefits.1

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Petitioner then requested an ALJ hearing regarding his “provider enrollment date.”  Jan. 30, 2018 Req. for Hearing.  CMS responded with a motion to dismiss or for summary judgment, to which Petitioner responded in an April 16, 2018 letter.

The ALJ determined that an in-person hearing was not required, denied CMS’s motion to dismiss or for summary judgment, and issued a decision “based on the written record, without regard to whether the standards for summary judgment are met.”  ALJ Decision at 3-4.  Applying 42 C.F.R. § 424.520(d) and Board precedent, the ALJ held that:  (1) the effective date of Petitioner’s Medicare billing privileges, and of his reassignment of Medicare benefits to ZPR, was November 1, 2017, the date that Petitioner filed the enrollment and reassignment applications that CMS ultimately approved; and (2) Petitioner was entitled to bill retrospectively for services furnished on or after October 2, 2017.  Id. at 6.  The ALJ also held that she had no authority to review CMS’s rejection of enrollment applications Petitioner filed in May and August 2017.  Id. at 7-8.  Finally, the ALJ rejected Petitioner’s (apparent) claim of equitable estoppel, stating that she had no authority to decide the case based on that doctrine or on “principles of fairness.”  Id. at 8-9.

On April 6, 2020, a ZPR employee named Danielle Berlly filed a request for review of the ALJ Decision and asked the Board to make July 1, 2017 the effective date of Petitioner’s reassignment of Medicare benefits.  She indicated that CMS’s decision to make the reassignment effective later than July 1, 2017 had resulted in the denial of some of ZPR’s Medicare claims for the “technical component” of radiology services performed by Petitioner.  She further asserted that these payment denials were improper because ZPR was a “fully credentialed” radiology practice when the services in question were rendered.

On April 14, 2020, the Board issued an Order to Show Cause.  The Board indicated in the order that the request for review’s allegations, coupled with the absence of information clearly indicating that Berlly was authorized to represent Petitioner’s interests, suggested that the request had been filed (in whole or part) on behalf of ZPR, which was not a party to the case before the ALJ.  The Board accordingly directed ZPR to explain why its (apparent) appeal should not be dismissed on that ground.

In an April 17, 2020 response to the show-cause order, Berlly stated that Dr. Akyol, ZPR, and ZPR’s Chief Operating Officer had authorized her to represent them.  She then restated the request that Petitioner (Dr. Akyol) be granted a “July 1, 2017 date of reassignment.”  Alternatively, she asked the Board to “allow ZPR to be reimbursed for the technical component of the services interpreted by Dr. Akyol between the dates of July 1, 2017 and September 30, 2017 . . . .”

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On April 29, 2020, the Board issued a three-part ruling.2   First, the Board held that ZPR was not a party to the proceeding before the ALJ and was therefore not entitled to Board review of the ALJ’s decision.  Second, the Board stated that it would treat the April 6, 2020 request for review as having been filed on behalf of Petitioner.  Third, the Board allowed Petitioner 16 additional days, or until May 15, 2020, to file a statement to “clarify his position regarding the merits of the ALJ’s decision.”  The Board advised Petitioner that a request for review “must specify each finding of fact and conclusion of law [by the ALJ] with which [the appellant] disagrees, and its basis for contending that each such finding or conclusion is unsupported or incorrect.”

Petitioner filed no further statement with the Board.

Standard of Review

In general, Board review of an ALJ’s decision is limited to determining whether or not:  (1) disputed factual findings are supported by “substantial evidence in the record as a whole”; (2) the decision’s necessary legal conclusions are correct (that is, are consistent with applicable statutes and regulations); and (3) a “prejudicial error of procedure . . . was committed.”  See Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s or Supplier’s Enrollment in the Medicare Program, “Completion of the Review Process,” ¶ (c) (available at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/enrollment/index.html).  The Board “will review only those parts of the record before the ALJ which are cited by the parties or which the Board considers necessary to decide the appeal.”  Id., “Completion of the Review Process,” ¶ (a).  In addition, the Board “will not consider issues not raised in the request for review” or “issues which could have been presented to the ALJ but were not.”  Id.

Analysis

The issue raised by Petitioner before the ALJ was the effective date of his Medicare billing privileges.  See Jan. 30, 2018Req. for Hearing (seeking a hearing regarding his “enrollment date”).  Applying 42 C.F.R. §  424.520(d), the ALJ concluded that those billing privileges – that is to say, Petitioner’s Medicare enrollment – became effective November 1, 2017.  Petitioner takes no issue with that conclusion in this appeal:  he does not contend that the ALJ based her conclusion on unsupported factual findings; nor does he argue that the ALJ misapplied, or failed to apply, the applicable law.  We therefore summarily affirm the ALJ’s conclusion that the effective date of Petitioner’s Medicare billing privileges was November 1, 2017.  Amber Mullins, N.P., DAB No. 2729, at 5

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(2016) (“Failure to articulate at least some disagreement with the bases for the ALJ decision permits the Board to summarily affirm the ALJ’s findings of fact and conclusions of law.”).

As the background summary indicates, Petitioner asks the Board to alter the effective date of his reassignment of Medicare benefits.  Relying on Medicare Program Integrity Manual (MPIM) instructions that she said are consistent with the effective-date regulation (section 424.520), the ALJ held that the effective date of Petitioner’s reassignment of Medicare benefits was November 1, 2017 – the date that CMS received the approved reassignment application.  ALJ Decision at 5-6 & n.5 (citing provisions in chapter 15 of the MPIM).   Petitioner does not dispute that holding, attempt to show that July 1, 2017 is the proper effective date under Medicare rules, or otherwise explain why reassignment could lawfully take effect earlier than the effective date of his right to bill Medicare for services.  Furthermore, the ALJ’s holding appears to be consistent with the Medicare program instructions she cited.  Those instructions state, in relevant part, that whether the reassignment application (form CMS 855R) is accompanied by an initial application for enrollment (as it apparently was in this case) or is submitted as a “stand-alone” form, the effective date of reassignment is “later of the date of filing [of the reassignment application] or the date the reassignor first began furnishing services at the new location.”  MPIM, CMS Pub. 100-04, Ch. 15, § 15.5.20.E.3.3

The ALJ’s holding is also consistent with the Board’s decision in Lakhanpal.  In that case, the Board relied on 42 C.F.R. § 424.520(d) to affirm an ALJ’s conclusion regarding a physician’s effective date of reassignment.  See DAB No. 2951, at 5, 6, 8.  As noted, section 424.520(d) directs CMS to set the effective date of enrollment as the later of (1) “[t]he date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor” or (2) “[t]he date that the supplier first began furnishing services at a new practice location.”  Applying that rule, the Board in Lakhanpal held that CMS (and subsequently the ALJ) had lawfully set the effective date of the physician’s reassignment “based on the only reassignment application that was processed to approval.”  Id. at 6.  The Board also held that it, and ALJs, are “bound by the applicable regulations and cannot alter an effective date based on principles of equity.”  Id. at 7.

To determine the effective date of Petitioner’s right to reassign Medicare benefits, the ALJ followed the legal reasoning used by the Board in Lakhanpal, holding that the effective date of reassignment was, in accordance with section 424.520(d), the date that CMS received “the first [reassignment] application that [CMS] was able to process to completion,” and that she had no authority to alter the effective date determined under

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that regulation.  ALJ Decision at 6 (noting that the outcome was “required by regulation”).  We see nothing in the record which distinguishes the relevant circumstances in Petitioner’s case from the ones in Lakhanpal, and we determine that the same reasoning applies here.  Moreover, to reiterate, Petitioner has not alleged an error by the ALJ in resolving the effective-date issues in his case.  For these reasons, we decline to disturb the ALJ’s holding regarding the effective date of Petitioner’s reassignment of Medicare benefits.

Finally, we cannot consider or rule on the request to “allow ZPR to be reimbursed for the technical component of the services interpreted by Dr. Akyol between the dates of July 1, 2017 and September 30, 2017.”  That request is essentially a claim for Medicare payment.  The Departmental Appeals Board and its ALJs are not authorized to make or review Medicare payment determinations.  See Vijendra Dave, M.D., DAB No. 2672, at 12 (2016).  Medicare payment disputes are handled under a different administrative appeals process.  See id.; 42 C.F.R. Part 405, subpart I (setting out an administrative appeal process relating to initial determinations regarding claims for benefits under Medicare Parts A and B).

Conclusion

We affirm the ALJ’s February 27, 2020 decision that November 1, 2017 was the effective date of Petitioner’s Medicare enrollment and reassignment of benefits.

1. The “30-day rule” mentioned in the reconsidered determination is the language in 42 C.F.R. § 424.521(a)(1) which defines the retrospective billing period as “[t]hirty days prior to [the supplier’s] effective date if circumstances precluded enrollment in advance of providing services to Medicare beneficiaries.”
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2. The Board’s April 29, 2020 ruling is titled “Ruling Dismissing Request for Review by ZPR and Granting Yakup Akyol, M.D. Leave to Clarify Position on Appeal.”
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3. The Medicare Program Integrity Manual is publicly available on CMS’s website at https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Internet-Only-Manuals-IOMs (last visited Oct. 2, 2020).
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