Anil Hanuman, D.O., DAB No. 3080 (2022)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Anil Hanuman, D.O. (Petitioner) appeals the June 17, 2022 decision by an Administrative Law Judge (ALJ) that upheld a Centers for Medicare & Medicaid Services (CMS) contractor’s determination to enroll Petitioner into the Medicare program effective August 11, 2021, and to assign a retrospective billing date of May 13, 2021.  Anil Hanuman, D.O., DAB CR6103 (2022) (ALJ Decision).  We affirm the ALJ Decision because it is supported by substantial evidence and is free of legal error.    

Legal Background

Regulations in 42 C.F.R. Part 424, subpart P (42 C.F.R. §§ 424.500-424.570) set out the “Requirements for Establishing and Maintaining Medicare Billing Privileges.”  CMS must approve a supplier of health care services for “enrollment” in the Medicare program for the supplier to bill and receive payment for health care services furnished to Medicare beneficiaries.  42 C.F.R. §§ 400.202 (defining “Supplier” to include a “physician” who “furnishes health care services under Medicare”), 424.500, 424.502, 424.505, 424.510, 424.516.¹  The Medicare enrollment process includes identifying a supplier, validating a supplier’s eligibility to provide items or services to Medicare beneficiaries, identifying and confirming the supplier’s practice location(s) and owner(s), and granting the supplier Medicare billing privileges.  Id. § 424.502 (defining “Enroll/Enrollment”).

To assist in the administration of the Medicare program, CMS delegates certain program activities to private administrative contractors.  See Social Security Act §§ 1816, 1842, 1866, 1874A; 42 C.F.R. § 421.5(b).

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To maintain Medicare billing privileges, an enrolled supplier must periodically “revalidate” the supplier’s enrollment information by resubmitting and recertifying the accuracy of the information in the enrollment application in accordance with 42 C.F.R. § 424.515.  When CMS asks the supplier to revalidate enrollment information, the supplier must submit “complete and accurate information and applicable supporting documentation within 60 calendar days of [CMS’s] notification to resubmit and certify to the accuracy of its enrollment information.”  42 C.F.R. § 424.515(a)(2).  

If the enrolled supplier fails to furnish complete and accurate information and all supporting documentation within 90 calendar days of receipt of CMS’s request to submit requested information and documents, CMS may deactivate the supplier’s Medicare billing privileges.  42 C.F.R. § 424.540(a)(3).  “Deactivate” means that the “supplier’s billing privileges were stopped, but can be restored upon the submission of updated information.”  Id. § 424.502.  If a supplier’s billing privileges are deactivated, CMS will not make payment “for otherwise Medicare covered items or services furnished to a Medicare beneficiary” by that supplier.  Id. § 424.555(b).  To reactivate Medicare billing privileges, the supplier must recertify the enrollment information on file and furnish missing information, or, if CMS requires, submit a new enrollment application (Form CMS-855).  Id. § 424.540(b)(1)-(2).

If CMS approves the enrollment application, it sets the “effective date” of enrollment for purposes of billing privileges.  42 C.F.R.§ 424.520(d).  The effective date of enrollment for Medicare billing privileges for a physician supplier 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.  

Id. § 424.520(d)(1)-(2).  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, 69,766-67, 69,769 (Nov. 19, 2008).  Accord Alexander C. Gatzimos, MD, JD, LLC d/b/a Michiana Adult Med. Specialists, DAB No. 2730, at 5 (2016).

An enrolled physician supplier who meets all program requirements and has been providing services at the enrolled practice location may bill for services “for up to– . . . [t]hirty days prior” to the effective date of enrollment “if circumstances precluded enrollment in advance of providing services to Medicare beneficiaries; or. . . [n]inety days prior to [the] 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 [the supplier’s] providing services to Medicare beneficiaries.”  42 C.F.R. § 424.521(a)(1)-(2).

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CMS’s determination of the effective date of a supplier’s enrollment in Medicare is an “initial determination” subject to appeal.  42 C.F.R. § 498.3(a)(1), (b)(15).  A supplier whose enrollment application was approved with an effective date of enrollment may request reconsideration of the effective date.  See Victor Alvarez, M.D., DAB No. 2325, at 3 (2010) (explaining that approval of enrollment with a particular effective date is in essence a denial of enrollment on an earlier date and the supplier has a right to a hearing under 42 C.F.R. § 498.5(l)).  If dissatisfied with the reconsidered determination, the supplier may request a hearing before an ALJ and thereafter may request review of the ALJ’s decision by filing a written request with the Board.  See 42 C.F.R. § 498.5(l), (f). 

Case Background²

In June 2014, CMS’s Medicare contractor, Noridian Healthcare Solutions (Noridian), asked Petitioner, who was enrolled as a supplier in the Medicare program, to revalidate his enrollment.  See ALJ Decision at 3 (citing CMS Ex. 6, at 2; CMS Ex. 8, at 1).  When Petitioner did not respond to Noridian’s request, by notice dated December 3, 2014, Noridian informed Petitioner that his billing privileges were deactivated.  Id. at 3 (citing CMS Ex. 8, at 1).

In December 2020, Petitioner opened a private practice and began seeing patients.  ALJ Decisionat 3 (citing CMS Ex. 6, at 2).  On August 11, 2021, Noridian received Petitioner’s Medicare enrollment application, which Noridian later approved after requesting, and receiving, additional information from Petitioner.  Id. at 3-4 (citing CMS Ex. 2, at 1; CMS Ex. 3, at 1; CMS Ex. 4; CMS Ex. 5, at 1).  By initial determination dated September 28, 2021, Noridian informed Petitioner that his enrollment application was approved and that he may bill Medicare starting on May 13, 2021.  Id. at 4 (citing CMS Ex. 5, at 1).

Petitioner asked Noridian to reconsider its initial determination and authorize him to begin billing on December 1, 2020.  ALJ Decision at 4 (citing CMS Ex. 6 (request for reconsideration), at 2 (“I am requesting a review to retrospectively back date [the] effective date to December 1, 2020. . . . I started a private practice in December 2020.”)).  In its February 2, 2022 reconsidered determination, Noridian stated that the effective date of Petitioner’s billing privileges was August 11, 2021, the date of receipt of his enrollment application, and that the retrospective billing date was May 13, 2021, 90 days before the effective date of enrollment, based on a national declaration of emergency due

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to the COVID-19 pandemic.  Id. at 3 (citing CMS Ex. 7³) and 4 (citing CMS Ex. 1, at 2).  

Noridian wrote:

Noridian has confirmed that a Public Health Emergency would be effective March 1, 2020.  With this direction any application received on or after April 1, 2020 may have a retrospective billing date of ninety days from the receipt date of the application pursuant to 42 C.F.R. § 424.521(a)(2) but cannot go past the Public Health Emergency start date of March 1, 2020.  Based upon the August 11, 2021 date of receipt [of Petitioner’s enrollment application], [Petitioner] has already been granted the maximum allotted ninety days of retrospective billing, with the retrospective billing date being May 13, 2021. 

CMS Ex. 1, at 2.

The ALJ Proceedings and Decision

Petitioner timely requested a hearing before an ALJ.  ALJ Decision at 1.  Thereafter, the ALJ issued a Standing Prehearing Order (Order), which detailed how the parties should submit their prehearing exchanges (brief, which may incorporate a motion for summary judgment; list of proposed exhibits; proposed exhibits; and list of any proposed witnesses and their written direct testimony to be submitted as proposed exhibits) and the procedures for requesting extensions of deadlines.  Id. at 2 (citing Order ¶¶ 5, 7).  TheOrder set the deadlines for submission of prehearing exchanges and stated that “[u]nless a hearing is required for cross-examination of a witness or witnesses, the record will be closed and the case will be ready for a decision after all the deadlines have passed.”  Id. at 2; Order ¶ 14.  Furthermore, the Order stated, “A 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.”  See ALJ Decision at 2; Order ¶ 13 (ALJ’s emphasis removed).

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CMS timely filed its prehearing exchange, which consisted of a prehearing brief (which included a motion for summary judgment) and eight proposed exhibits.  ALJ Decision at 1.  The ALJ admitted all eight of CMS’s proposed exhibits, without objection from Petitioner.  Id. at 2-3.  Petitioner did not file his prehearing exchange; nor did he request an extension of time to file his prehearing exchange.  Id. at 1.

The ALJ determined no in-person hearing was needed “[b]ecause neither party offered any written direct testimony from witnesses,” and the ALJ therefore issued a decision based on the written record.  ALJ Decision at 2 (citing Vandalia Park, DAB No. 1940 (2004), aff’d, Vandalia Park v. Leavitt, 157 F. App’x 858 (6th Cir. 2005)).  The ALJ “den[ied] CMS’s summary judgment motion as moot.”  Id.

The ALJ upheld Noridian’s determination that the effective date of enrollment of Petitioner’s Medicare billing privileges is August 11, 2021, the date on which Noridian received the enrollment application that was approved, with retrospective billing authorized beginning May 13, 2021 (90 days before August 11) consistent with the applicable regulations.  ALJ Decision at 4 (Conclusions of Law), 5.  In addressing Petitioner’s argument in his request for hearing that “he should receive a December 4, 2020 retrospective billing date because he started to provide services to Medicare beneficiaries as of that date and because of the exigencies related to the COVID-19 pandemic” (id. at 5, citing request for hearing at 1⁴), the ALJ wrote:

[T]he effective date of enrollment is determined by either the date of filing of an enrollment application that is processed to approval or the date on which the physician starts to provide services, whichever is later in time.  42 C.F.R. § 424.520(d). . . .  [T]here is no doubt that the date of filing of the enrollment application (August 11, 2021) is later than the date on which Petitioner commenced providing services (December 4, 2020).  Therefore, August 11, 2021, is the correct effective date for enrollment.

Id. (ALJ’s emphasis).  In addressing Petitioner’s request for a retrospective billing date earlier than May 13, 2021, the ALJ stated:

[Section 424.521(a)(2)] already provides for an extended retrospective billing period when there is a presidentially declared disaster.  Noridian provided the full relief that the regulations permit for the COVID-19 pandemic [i.e., 90 days] when it provided a retrospective billing period commencing May 13, 2021. 

Id. at 6.

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The ALJ stated, “I am sympathetic to Petitioner’s inability to receive Medicare reimbursement for months of services provided to Medicare beneficiaries.”  ALJ Decision at 6.  The ALJ also acknowledged the burden the pandemic put on health care providers.  Id.  However, the ALJ stated, “neither Noridian nor I have the authority to” permit Petitioner to bill earlier than May 13, 2021.  Id.

Board Proceedings and the Parties’ Arguments

On July 17, 2022, about a month before the appeal deadline, Petitioner, by his non-attorney representative appointed to represent him before the Board in accordance with 42 C.F.R. §§ 498.10 and 498.11, filed a request for Board review of the ALJ Decision.  Request for Review (RR) at 1; see 42 C.F.R. § 498.82(a)(2) (stating that a request for review must be filed within 60 days from receipt of notice of ALJ decision).  The Presiding Board Member gave Petitioner an opportunity to submit, by the 60th day, August 16, 2022, a brief or statement that “specif[ies] the issues, the findings of fact or conclusions of law with which [he] disagrees, and the basis for contending that the findings and conclusions are incorrect,” in accordance with 42 C.F.R. § 498.82(b).  July 27, 2022 Acknowledgment Letter at 2.  Petitioner timely supplemented his initial submission with letters dated August 15, 2022 (August 15, 2022 Letter) and August 16, 2022 (August 16, 2022 Letter).  We consider Petitioner’s arguments in the request for review and the two letters.⁵

Petitioner states the ALJ “closed” his case “prematurely” without scheduling a hearing and even “overlooked” the “scheduling of a prehearing conference” in accordance with the ALJ’s standing order.  RR at 1; August 15, 2022 Letter.  Petitioner expresses his

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“understanding” that a hearing “would have been scheduled following [his] reconsideration petition,” and that he should have been given “an opportunity to state [his] case[.]”  August 15, 2022 Letter.  Petitioner also says that a prehearing conference “would have afforded [him] an opportunity to verbally exchange [his] disputed issues related to the case.”  RR at 1.  Petitioner moreover explains that he responded to the “acute need” of the healthcare system during the pandemic by providing medical services.  August 16, 2022 Letter; RR at 1 (“I would like the opportunity to discuss the pertinence and importance of being available to patients and providing care during the COVID 19 pandemic.”). 

CMS urges the Board to summarily affirm the ALJ Decision because Petitioner failed to articulate any legal error by the ALJ, and the ALJ properly proceeded to decision without convening a hearing and did not deny Petitioner procedural due process.  Resp. Brief at 4-6.  CMS also argues that the ALJ properly upheld August 11, 2021 as the effective date of Petitioner’s enrollment, and that Noridian had assigned the earliest permissible retrospective billing date under the circumstances of a national emergency.  Id. at 6-9.  Finally, CMS frames Petitioner’s arguments as a request for equitable relief and argues that neither the Board, nor an ALJ, is authorized to grant equitable relief.  Id. at 9-10. 

In reply, Petitioner states that he does “not object [to] nor dispute any of the ALJ’s previous findings as there were no legal errors[.]”  Reply Brief at 1.  However, Petitioner emphasizes that he faced difficulty in obtaining the information and documents from his “previous employer” to support his enrollment application.  Despite these challenges, which Petitioner says caused a “delay in the re-application process,” Petitioner continued to see patients.  Id.

Petitioner also requested an opportunity to present oral argument before the Board.  August 15, 2022 Letter.  The Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s or Supplier’s Enrollment in the Medicare Program (Guidelines), a copy of which was provided to the parties with the ALJ Decision, instructs the parties to “state the purpose” of any request for oral argument.  Guidelines, “Development of the Record on Appeal,” ¶ (g).⁶  By ruling issued on October 3, 2022, the Presiding Board Member denied the request because Petitioner did not state in his reply brief the purpose of the oral argument or respond to CMS’s objection to the request for oral argument (Resp. Brief at 10-12), and oral argument would not aid the Board’s decision-making. 

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Standard of Review

The Board’s standard of review on a disputed factual issue is whether the ALJ Decision is supported by substantial evidence in the record as a whole; the standard of review on a disputed issue of law is whether the ALJ’s decision is erroneous.  Guidelines, “Completion of the Review Process,” ¶ (c).

Analysis

1. The ALJ’s conclusion that the effective date of Petitioner’s enrollment in Medicare is August 11, 2021, with retrospective billing privileges starting on May 13, 2021, was not erroneous and is supported by substantial evidence.

Petitioner does not dispute that the effective date of his enrollment is determined in accordance with 42 C.F.R. § 424.520(d), or that, in accordance with that regulation and based on the date Noridian received his enrollment application, his enrollment is effective on August 11, 2021.  Nor does Petitioner dispute the assignment of May 13, 2021, 90 days before August 11, 2021, as his retrospective billing date, in accordance with 42 C.F.R. § 424.521(a)(2).

Petitioner nevertheless asks the Board to assign a retrospective billing date even earlier than May 13, 2021, seeking to close the remaining gap in billing privileges between the date on which he began seeing Medicare beneficiaries after opening his private practice and May 12, 2021 (the day before the retrospective billing date).  Petitioner maintains, in essence, that we ought to assign an earlier retrospective billing date given the challenging circumstances brought on by the pandemic, during which, he says, he responded to an acute need in the community by serving Medicare beneficiaries.⁷  Petitioner also appears to suggest that an effective date of enrollment earlier than August 11, 2021 should be assigned (based on which an earlier retrospective billing date may be assigned) based on his alleged difficulty in obtaining information and documents from his previous employer, which he says delayed the submission of his application.  See Reply Brief at 1; August 16, 2022 Letter.

The ALJ correctly determined that, based on record evidence indicating that Noridian received and processed to approval an application received on August 11, 2021, the

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effective date of enrollment is, and must be, August 11, 2021, in accordance with section 424.520(d).  See ALJ Decision at 5.  Because section 424.520(d) provides that the effective date of enrollment is the later of the date of filing of an enrollment application that is approved (August 11, 2021) or the date on which the supplier begins providing services (here, purportedly in December 2020), the ALJ was also correct in stating that “December 4, 2020” cannot be the effective date of enrollment.  See id.⁸

Moreover, the ALJ correctly determined that the retrospective billing date of May 13, 2021 (90 days before the effective date of Petitioner’s enrollment) was the earliest possible retrospective billing date that Noridian could provide under section 424.521(a)(2) based on a presidentially declared disaster.  ALJ Decision at 5-6 (explaining that Noridian provided the “full relief” that the regulations permit for the COVID-19 pandemic when it provided a 90-day period of retrospective billing).⁹  No regulation in Part 424, subpart P authorizes the assignment of a retrospective billing date more than 90 days before the effective date of enrollment for any reason.  Nor do any subpart P regulations authorize the assignment of an earlier effective date of enrollment or retrospective billing date based on (alleged) difficulty obtaining information and documents necessary to resume enrollment and billing following a period of deactivation.

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Petitioner’s request for a billing date earlier than May 13, 2021, based on an allegedly earlier provision of services under the stress of difficult circumstances engendered by the pandemic amounts to a request for equitable relief despite the absence of any authority that permits the assignment of such an earlier date and despite Petitioner expressly acknowledging that the ALJ committed no error.  See Reply Brief at 1.  We must follow Part 424, subpart P regulations and cannot alter a billing date for equity reasons.  See Wishon Radiological Med. Grp., DAB No. 2941, at 9-10 (2019); Timothy Ekhlassi, M.D., M.P.H., DAB No. 3065, at 9 (2022); Gregory J. Frazer, Au.D., Ph.D., DAB No. 3038, at 11 (2021). 

2. The ALJ gave Petitioner an opportunity to present his arguments and any supporting evidence; the ALJ did not err or abuse his discretion in not holding a prehearing conference and was not required to convene a hearing.

Petitioner states that a prehearing conference, had the ALJ held one, would have given him a chance to “verbally exchange [his] disputed issues[.]”  RR at 1.  Petitioner also expresses his “understanding” that the ALJ would schedule a hearing, but says he instead received notice that his case was “closed prematurely,” thus depriving him of an opportunity to “state [his] case” and the parties an opportunity to present an “equitable exchange.”  August 15, 2022 Letter.  Petitioner thus asserts the ALJ did not give the process due him, namely, an opportunity to “state [his] case” orally before the ALJ in a prehearing conference or a hearing.

The regulations in 42 C.F.R. Part 498, subpart D, captioned “Hearings,” include regulations governing prehearing conferences during ALJ proceedings.  In accordance with 42 C.F.R. § 498.47(a), “[a]t any time before the hearing, the ALJ may call a prehearing conference”¹⁰ to delineate the issues in controversy, identify evidence and witnesses who would testify at a hearing, and to obtain stipulations.  See also Glenburn Home, DAB No. 1806, at 5 (2002) (stating that a “hearing may be preceded by a prehearing conference” to accomplish the purposes set out in section 498.47); Crestview Parke Care Ctr., DAB CR867, at 2 n.1 (2002) (An ALJ may hold a prehearing conference to “narrow the issues and focus the inquiry.”), aff’d, DAB No. 1836 (2002).  A prehearing conference is set and held in accordance with sections 498.48 (“Notice of prehearing conference”), 498.49 (“Conduct of prehearing conference”), and 498.50

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(“Record, order, and effect of prehearing conference”).  The Civil Remedies Division Procedures (CRDP) and the Order, sent to the parties shortly after Petitioner’s request for hearing was docketed, set out the procedures for a prehearing conference.  See CRDP § 5 (explaining the purpose of, and the issues that could be addressed in, a prehearing conference; stating that “[a]t any time before the hearing, the ALJ may call a prehearing conference”);¹¹ Order ¶¶ 6 (explaining that the parties themselves may ask the ALJ to schedule a prehearing conference), 13 (“I may convene a prehearing conference before the hearing if I believe it is necessary or if either party requests one.” (ALJ’s emphasis removed)). 

Accordingly, a prehearing conference, which, if held, necessarily must occur before a hearing, is not equivalent to a hearing, the procedures for which are addressed in various regulations in Part 498, subpart D.  Moreover, an ALJ may, but is not required to, hold a prehearing conference.  An ALJ may hold a prehearing conference if, for instance, the parties ask the ALJ to do so and the ALJ determines one would be appropriate, to define the disputed issues for ALJ resolution.  The ALJ did not schedule a prehearing conference in this case, presumably because the ALJ did not see the need for one.  In any event, the record of the ALJ proceedings reveals no request for the scheduling of a prehearing conference by either party despite the ALJ’s early notice to the parties that they may ask the ALJ to schedule one.  Petitioner does not argue that there were issues or other matters appropriate for discussion at a prehearing conference. 

Petitioner instead makes statements that suggest a belief that a prehearing conference, had the ALJ held one, would have been an opportunity to make, orally, arguments about the challenges he faced in delivering care to patients during the pandemic, before May 13, 2021.  Petitioner’s apparent belief does not align with the purpose of a prehearing conference over which the ALJ has discretion to determine whether one is appropriate in a given case.  And, a prehearing conference is generally not an opportunity to present oral argument about the disputed issue(s).    

In general, the parties present their arguments to ALJs in writing.  The ALJ in this case gave Petitioner and CMS an opportunity to submit written argument, as well as supporting evidence (i.e., exhibits), in accordance with his Order.  With respect to testimonial evidence, an ALJ may require the parties to offer direct testimony in written form, as the ALJ did in this case, so long as each party is given an opportunity to cross-examine the opposing party’s witness(es).  See Order ¶¶ 11 (citing CRDP ¶ 19(b)), 12 (citing 42 C.F.R. § 498.62), 13; HeartFlow, Inc., DAB No. 2781, at 18 (2017); Miracle Deeds Med. Supplies, LLC, DAB No. 2785, at 5 (2017) (citing HeartFlow, at 17-18); see also Vandalia Park, DAB No. 1940, at 29 (2004) (quoting Pacific Regency Arvin, DAB

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No. 1823, at 7-8 (2002) (“The use of written direct testimony is not itself prejudicial, as long as the right to effective cross-examination is preserved.”)).  In accordance with the ALJ’s instructions in his Order, ¶ 7, CMS first submitted its prehearing exchange, which included exhibits, though written direct testimony was not among them.  Petitioner thus had the benefit of considering CMS’s arguments in defense of its contractor’s determination and CMS’s supporting exhibits, and had an opportunity to “state his case” in a written brief and to submit any supporting exhibits (including written direct testimony of an individual, such as that of Petitioner), but did not use that opportunity.  See ALJ Decision at 1 (“Petitioner did not file a brief or proposed exhibits.”).¹²  In other words, Petitioner could have made, but did not make, his arguments to the ALJ, in writing – the very arguments Petitioner now says the ALJ deprived him of an opportunity to make.

More to the point, since neither CMS nor Petitioner submitted the written direct testimony of any individual who would then be subject to cross-examination, there was no need to convene an oral hearing to permit cross-examination.  Accordingly, the ALJ did not err in proceeding to decision on the written submissions alone (which, as noted, did not include Petitioner’s prehearing exchange) without convening an in-person hearing.¹³  See Lena Lasher, aka Lena Contang, aka Lena Congtang, DAB. No. 2800, at 4 (2017) (stating that where neither party submitted written direct testimony, “no purpose would be served by holding an in-person hearing”), aff’d, 369 F. Supp. 3d 243 (D.D.C. 2019), aff’d, No. 19-5114, 2020 WL 9256389 (D.C. Cir. Nov. 12, 2020)); see also Marcus Singel, D.P.M., DAB No. 2609, at 5 (2014) (stating that where neither party presents, or requests to cross-examine, witnesses, “[h]olding a hearing is a particularly empty endeavor”); Big Bend Hosp. Corp., d/b/a Big Bend Med. Ctr., DAB No. 1814, at 13-16 (2002) (stating that a hearing is not necessary where no testimonial evidence could alter relevant factual findings or affect the outcome, so that convening a hearing would amount to an “empty formalism and a waste of administrative and litigant resources”), aff’d, Big Bend Hosp. Corp. v. Thompson, No. P-02-CV-30 (W.D. Tex. Jan. 2, 2003), aff’d, 88 F. App’x 4 (5th Cir. 2004).

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The ALJ did not deprive Petitioner of an opportunity to present his arguments (and supporting evidence) to the ALJ.  The ALJ did not err or abuse his discretion in not holding a prehearing conference; nor did the ALJ err in proceeding to a decision based on the written submissions alone, without convening an in-person hearing.

Conclusion

We affirm the ALJ Decision. 

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Endotes

¹  We cite to and apply the enrollment regulations in effect on September 28, 2021, when CMS’s contractor issued its initial determination regarding the effective date of Petitioner’s billing privileges.  See Arthur L. Jenkins III, M.D. and Jenkins NeuroSpine LLC, DAB No. 3070, at 1 n.1 (2022).  CMS subsequently revised certain regulations governing Medicare enrollment, including the redesignation of 42 C.F.R. § 424.521(a)(1) and (2) as, respectively, § 424.521(a)(1)(i) and (ii).  See, e.g., 86 Fed. Reg. 62,240, 62,357 (Nov. 9, 2021).

²  The factual information in this section is drawn from the ALJ Decision and the record of the ALJ proceedings and is not intended to replace, modify, or supplement the ALJ’s findings of fact.

³  CMS’s exhibit 7 is Proclamation 9994, “Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak,” issued by the President of the United States on March 13, 2020, and published in 85 Fed. Reg. 15,337 (Mar. 18, 2020).  Proclamation 9994 states that, by the authority vested in the President by the U.S. Constitution and federal laws, “including sections 201 and 301 of the National Emergencies Act (50 U.S.C. § 1601 et seq.) and consistent with section 1135 of the Social Security Act . . ., as amended (42 U.S.C. [§] 1320b-5),” the President “find[s] and proclaim[s] that the COVID-19 outbreak in the United States constitutes a national emergency, beginning March 1, 2020.”  CMS Ex. 7, at 1 (85 Fed. Reg. at 15,337). 

Proclamation 9994 also states:  “Section 1.  Emergency Authority.  The Secretary of [the Department of Health and Human Services] may exercise the authority under section 1135 of the [Social Security Act] to temporarily waive or modify certain requirements of the Medicare, Medicaid, and State Children’s Health Insurance programs . . . throughout the duration of the public health emergency declared in response to the COVID-19 outbreak.”  Id. (emphases in original).

⁴  The ALJ wrote:  “I address the arguments that Petitioner raised in his [request for hearing].”  ALJ Decision at 3.  We understand the ALJ’s statement to mean the ALJ was doing so because Petitioner did not submit his prehearing exchange, which, had Petitioner submitted it, would have included a brief.

⁵  Petitioner also submitted his curriculum vitae, a document Petitioner identified as the “CAQH Data Summary” (which includes information about Petitioner and his practice, such as licensing status, educational history, and practice locations), and his February 28, 2022 letter, addressed to Noridian.  Petitioner’s curriculum vitae and the “CAQH Data Summary” appear to be new documents not previously offered to the ALJ for admission into the evidentiary record.  By regulation, the Board must decide an enrollment appeal, such as this appeal, based on the record that was developed before the ALJ.  See 42 C.F.R. § 498.86(a) (excepting provider/supplier enrollment appeals from appeals in which the Board may admit evidence in addition to that in the record of the ALJ proceedings); see also Gregory J. Frazer, Au.D., Ph.D., DAB No. 3038, at 8 (2021) (“The appeal regulations prohibit the Board from admitting into the record in Medicare enrollment appeals evidence not proffered to the ALJ.”) (citation omitted); Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s or Supplier’s Enrollment in the Medicare Program (Guidelines), “Development of the Record on Appeal,” ¶ (f).  As for Petitioner’s February 28, 2022 letter, that letter, although addressed to Noridian, was submitted to the ALJ as Petitioner’s request for hearing.  (We do not know whether Petitioner also submitted the letter, dated after Noridian issued its reconsidered determination, to Noridian, but whether or not Petitioner did so has no material bearing on our analysis.)  As we explained in our August 17, 2022 letter to the parties, page 2, we will not consider the three items to decide this appeal, but will retain those items as part of the administrative record.  We note, moreover, that since Petitioner already submitted his February 28, 2022 letter to the ALJ and the ALJ considered it as Petitioner’s request for hearing, which is part of the record of the ALJ proceedings, Petitioner need not have submitted a duplicate of that letter to the Board.

⁶  The Guidelines are accessible at:  https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/enrollment/index.html?language=en.

⁷  Because the effective date of enrollment and the retrospective billing date are determined based on the undisputed evidence of Noridian’s receipt of Petitioner’s enrollment application on August 11, 2021 and in accordance with the regulations, Petitioner’s curriculum vitae and the “CAQH Data Summary,” which Petitioner submitted to the Board (see note 5 supra), even assuming for the moment they could now be admitted (they cannot be), could not have any material bearing on the outcome.  For the same reason, even assuming Petitioner had an opportunity to make arguments about providing needed medical care during the pandemic, orally, before the Board or before the ALJ (see also discussion infra), such arguments could not affect the outcome.

⁸  We assume the ALJ relied on Petitioner’s statement in his request for hearing that he began serving Medicare beneficiaries on December 4, 2020.  However, earlier, in his request for reconsideration, Petitioner stated that he wanted “to retrospectively back date [the] effective date to December 1, 2020.”  CMS Ex. 6, at 2.  Before the Board, Petitioner states that he wants a retrospective billing date in January 2021, when he started his private practice.  August 16, 2022 Letter.  We need not determine exactly when in December 2020 or January 2021 Petitioner opened his private practice and began serving Medicare beneficiaries for purposes of the question of whether the record supports August 11, 2021 as the effective date of enrollment.  Regardless of the exact date in December 2020 or January 2021, these two months pre-dated August 11, 2021.  Since August 11, 2021, the date of receipt of Petitioner’s enrollment application, is later than any date in December 2020 or January 2021, August 11, 2021 must be the effective date of enrollment in accordance with section 424.520(d)(1).

⁹  CMS states that section 424.521 permits retrospective billing for up to 90 days before the effective date of enrollment “if a Presidentially declared disaster under the Stafford Act . . . precluded enrollment in advance of providing services to Medicare beneficiaries.”  Resp. Brief at 7-8 (citing 42 C.F.R. § 424.521(a)(1)(ii), previously designated § 424.521(a)(2)).  CMS correctly captures what the regulation provides but does not explain how a public health emergency declaration (Proclamation 9994 - CMS Ex. 7) established the existence of a “Presidentially declared disaster under the Stafford Act.”  We assume without deciding that the requirements for assigning a 90-day period of retrospective billing under section 424.521(a)(2) are satisfied because CMS did not at any time during the appeal process (before the ALJ or the Board) raise an issue concerning Noridian’s determination to provide a 90-day period of retrospective billing based on section 424.521(a)(2).  Indeed, CMS defends its contractor’s determination, maintaining that Noridian “lawfully opted to” assign May 13, 2021, as the retrospective billing date in accordance with the regulation.  See Resp. Brief at 8.  We note, moreover, that Proclamation 9994 provides that the Secretary of the Department of Health and Human Services “may exercise the authority . . . to temporarily waive or modify certain requirements of the Medicare . . . program[ ] . . . throughout the duration of the public health emergency declared in response to the COVID-19 outbreak.”  CMS Ex. 7, at 1.  Petitioner, however, does not identify, nor are we aware of, any determination by the Secretary “to temporarily waive or modify” the rules for assigning retrospective billing dates set out in section 424.521 in a way that could be more favorable to Petitioner.

¹⁰  The word “may” as used in a Part 498 regulation (as in section 498.47) may be understood as permissive, not mandatory, language.  See, e.g., Life Care Ctr. of Kirkland, DAB Ruling 2020-3, at 2 (2020) (stating that 42 C.F.R. § 498.76, which states that the Board “may” remove to itself any pending request for ALJ hearing before the ALJ receives oral testimony, “does not establish removal of a [request for] hearing to the Board as a matter of right” and “contemplates Board discretion in determining whether removal . . . to the Board is appropriate”) (emphasis removed here); Meridian Nursing & Rehab at Shrewsbury, DAB No. 2504, at 7 (2013) (“The Board has long recognized that where the [Part 498] regulation states that an ALJ ‘may’ dismiss, dismissal is an exercise of discretion and reviewable as such.” (citations omitted)).

¹¹  The Civil Remedies Division Procedures, which were provided to the parties, are accessible at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-alj/procedures/index.html.

¹²  The ALJ issued his decision on June 17, 2022, after the expiration of the time Petitioner had to submit his prehearing exchange.  See April 1, 2022 letter acknowledging request for hearing (stating that Petitioner’s prehearing exchange is due on June 10, 2022); Order ¶ 7. 

¹³  The ALJ notified the parties that an oral hearing may be “unnecessary and not in the overall interest of judicial economy” if the parties do not identify proposed witnesses, submit written direct testimony of a proposed witness, or request to cross-examine a witness for whom written direct testimony has been offered, and that the ALJ may decide the case based on the written record under such circumstances.  CRDP § 19(d); see also Order ¶ 13 (“A 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.” (ALJ’s emphasis removed)).