Wishon Radiological Medical Group, Inc., DAB CR5066 (2018)

DECISION

The effective date of the Medicare enrollment and billing privileges of Petitioner, Wishon Radiological Medical Group, Inc., is March 4, 2016, with retrospective billing privileges beginning February 3, 2016.

I. Background and Procedural History

Petitioner is a radiology group practice. See Petitioner (P.) Exhibit (Ex.) 1 at 2-4; Centers for Medicare & Medicaid Services (CMS) Ex. 1. Petitioner submitted a Medicare enrollment application to Noridian Healthcare Solutions, LLC (Noridian), a Medicare administrative contractor, that Noridian received on July 16, 2015.Petitioner incorrectly argues that it submitted this application, which is signed and dated July 16, 2015, on July 15, 2015. Petitioner Brief (P. Br.) at 2; see CMS Ex. 7 at 14. CMS Ex. 1. Noridian informed Petitioner, via an email message sent to its practice administrator and office manager, Cathy Franz, on July 24, 2015, that its application was incomplete and requested that Petitioner complete additional development no later than August 6, 2015. CMS Ex. 2 at 1; see CMS Ex. 1 at 11; P. Ex. 1 at 4. At that time, Noridian requested that Petitioner submit at least one application for the reassignment of benefits because it “cannot enroll a new organization without at least one group member who is reassigning

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their benefits to the organization.” CMS Ex. 2 at 1. Noridian also requested that Petitioner “call into our call center and verify your correspondence address and phone number and all of your practice location addresses.” CMS Ex. 2 at 1. Finally, Noridian directed Petitioner to submit a bank verification letter or voided check, along with a copy of certain Internal Revenue Service (IRS) documentation. CMS Ex. 2 at 1. Noridian cautioned that “[f]ailure to respond in a timely manner will result in your Medicare application being rejected if you do not furnish the complete information requested.” CMS Ex. 2 at 2. After Petitioner did not respond to the development request, Noridian rejected Petitioner’s enrollment application on August 24, 2015.Noridian did not cite Petitioner’s failure to submit bank account information and IRS documentation as bases for rejecting Petitioner’s application. CMS Ex. 3. CMS Ex. 3.

Petitioner submitted a new enrollment application on March 4, 2016. CMS Exs. 4, 5. After receiving additional development (see CMS Ex. 4), Noridian, in a letter dated March 31, 2016, approved Petitioner’s enrollment application and assigned an effective date of billing privileges of February 3, 2016. CMS Ex. 6 at 1. Noridian favorably assigned a February 3, 2016 effective date of billing privileges based on its apparent interpretation that 42 C.F.R. § 424.521(a) allowed for an earlier effective date of billing privileges based on the 30-day retrospective billing provision contained in that regulation. See CMS Ex. 6 at 1; but see CMS Brief (Br.) at 5 (“To be clear, the effective date of enrollment in the Medicare program was March 4, 2016, and the effective date for Petitioner’s billing privileges was thirty (30) days prior to the effective date of enrollment in the program, pursuant to 42 C.F.R. § 424.521(a)(1).”).

In a letter dated March 16, 2017, Petitioner requested reconsideration of the March 31, 2016 determination and requested that the effective date of its enrollment be revised to May 20, 2015, the day it began providing services to Medicare beneficiaries.Even though the initial determination informed Petitioner that it must file a request for reconsideration within 60 days (CMS Ex. 6 at 2), Petitioner did not file a request for reconsideration for more than a year. CMS Ex. 7 at 8. CMS found good cause to extend the time for filing a request for reconsideration. CMS Ex. 8 at 1. CMS Ex. 7 at 14. Alternatively, Petitioner requested an effective date of “June 15, 2015, thirty days prior to the date Wishon submitted its initial Medicare enrollment application.”Petitioner also discussed that it “discovered in late 2016 that its Medicare enrollment issues included group members who had never been enrolled in Medicare or who were not enrolled in Medicare in California.” CMS Ex. 7 at 15. Petitioner requested revision of the effective date of enrollment of six of its physicians who provided 2,630 services to Medicare beneficiaries amounting to $220,204 in Medicare reimbursement if the physicians had timely enrolled in the Medicare program. CMS Ex. 7 at 15. The instant decision is limited to the effective date of Petitioner’s Medicare enrollment and billing privileges, and not the effective date of enrollment and billing privileges for any of its individual physicians. CMS Ex. 7 at 14. Petitioner explained, in pertinent part:

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Wishon was required to leap into action and have approximately eight physicians of varying specialties ready to provide services [to a hospital’s patients] on May 20, 2015 because the previous group would no longer provide services as of that evening. Although [office manager and practice administrator] Ms. Franz did not submit an application until July 15, 2015, this was surely the result of her attention being drawn by the demands of the group’s expansion and her lack of awareness of the significance of the application filing date; it was certainly not the intent of anyone at Wishon, including Ms. Franz, to foreclose reimbursement for any period.

CMS Ex. 7 at 14.

CMS’s Provider Enrollment & Oversight Group issued a reconsidered determination on June 8, 2017, at which time it determined that the effective date of Petitioner’s Medicare enrollment and billing privileges is March 4, 2016, with a retrospective billing date of February 3, 2016. CMS Ex. 8 at 5. CMS explained:

On July 15, 2015, Noridian received a web CMS-855B Medicare initial enrollment application from Wishon. On August 24, 2015, Noridian properly rejected Wishon’s Medicare enrollment application for failing to respond to a request for additional information and corrections, dated July 24, 2015. Wishon submitted a new web CMS-855B Medicare enrollment application on March 4, 2016, which was subsequently approved with an effective date of enrollment of February 3, 2016. Although Wishon’s effective date of enrollment should be March 4, 2016 under 42 C.F.R. § 424.520(d), with a 30 day retrospective billing date of February 3, 2016 Wishon has not been adversely effected [sic] because it was eligible to submit claims for the maximum time allowable under 42 C.F.R. § 424.521(a)(1). Therefore, the reconsideration is denied and the effective date is upheld.

CMS Ex. 8 at 5.

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Petitioner submitted a request for a hearing by an administrative law judge (ALJ) on August 4, 2017. I issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) on August 17, 2017, in which I directed the parties to file their respective pre‑hearing exchanges, to include briefs and supporting exhibits, by specified deadlines. I also gave notice in Section 4 of my Pre-Hearing Order that a party may file a motion for summary judgment with its pre-hearing exchange.

CMS filed a motion for summary judgment and a pre-hearing brief, along with eight proposed exhibits. Petitioner filed a pre-hearing brief and opposition to CMS’s motion for summary judgment, along with one proposed exhibit, which is the written direct testimony of its treasurer, William Hastrup, Jr., M.D. (P. Ex. 1). In the absence of any objections, I admit CMS Exs. 1 through 8 and P. Ex. 1.

Neither party has requested an in-person hearing for the purpose of obtaining testimony or cross-examination, and a hearing is therefore unnecessary for the purposes of cross-examining any witnesses. See Pre-Hearing Order, §§ 8, 9, 10. The matter is ready for a decision on the merits.CMS has argued that summary disposition is appropriate. It is unnecessary in this instance to address the issue of summary disposition, as neither party has requested an in‑person hearing.

II. Jurisdiction

I have jurisdiction to decide this case.  See 42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2).

III. Discussion

1. A. Issue

The issue in this case is:

Whether the effective date of Petitioner’s Medicare enrollment and billing privileges is March 4, 2016, with retroactive billing privileges effective February 3, 2016.

1. B. Background law

Section 1831 of the Social Security Act (the Act) (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B. Payment under the program for services rendered to Medicare-eligible beneficiaries may only be made to eligible providers of services and suppliers. Act

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§§ 1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395u(h)(1)). Petitioner is a “supplier” of services under the Act and the regulations. A “supplier” furnishes services under Medicare, and the term “supplier” applies to physicians or other practitioners and facilities that are not included within the definition of the phrase “provider of services.” Act § 1861(d) (42 U.S.C. § 1395x(d)). Pursuant to 42 C.F.R. § 424.505, a provider or supplier must be enrolled in the Medicare program and be issued a billing number to have billing privileges and to be eligible to receive payment for services rendered to a Medicare-eligible beneficiary.

The effective date of enrollment in Medicare of a physician, nonphysician practitioner, and physician and nonphysician practitioner organizations is governed by 42 C.F.R. § 424.520(d). Pursuant to section 424.520(d), the effective date of enrollment for a physician or nonphysician practitioner may only be the later of two dates: the date when the practitioner filed an application for enrollment that was subsequently approved by a Medicare contractor charged with reviewing the application on behalf of CMS; or, the date when the practitioner first began providing services at a new practice location. As applicable here, an enrolled physician or nonphysician practitioner may retrospectively bill Medicare for services provided to Medicare-eligible beneficiaries up to 30 days prior to the effective date of enrollment, if circumstances precluded enrollment before the services were provided. 42 C.F.R. § 424.521(a)(1).

1. C. Findings of Fact, Conclusions of Law, and AnalysisFindings of fact and conclusions of law are set forth in bold and italics.
   1. 1. Pursuant to 42 C.F.R. § 424.520(d), Petitioner’s effective date of Medicare enrollment is March 4, 2016, the date of filing of the Medicare enrollment application that Noridian was able to process to approval.
   2. 2. Petitioner was authorized pursuant to 42 C.F.R. § 424.521(a)(1) to bill Medicare for services provided to Medicare-eligible beneficiaries up to 30 days prior to its effective date of enrollment, i.e., beginning on February 3, 2016.

Petitioner seeks an earlier date of July 15, 2015, as the effective date of its Medicare enrollment and billing privileges. Noridian received the enrollment application that it ultimately processed to approval on March 4, 2016. CMS Exs. 4, 5. Therefore, the earliest possible effective date for Petitioner’s Medicare enrollment and billing privileges is March 4, 2016, the date the application was filed, as the regulation specifically provides that the effective date is the later of the date of filing a Medicare enrollment

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application that was subsequently approved or the date services were first provided. 42 C.F.R. § 424.520(d). Retrospective billing may be permitted for 30 days prior to the effective date of enrollment and billing privileges pursuant to 42 C.F.R. § 424.521, and Noridian allowed Petitioner to bill for services effective 30 days prior to the submission of the application, beginning February 3, 2016. CMS Ex. 6 at 1. Accordingly, 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 4, 2016, with an earliest possible billing date beginning February 3, 2016, in accordance with 42 C.F.R. § 424.521(a)(1).

Petitioner raises a new argumentPrior to the instant appeal, Dr. Hastrup sent a letter to CMS in January 2017 that provided a more candid explanation for Petitioner’s failure to comply with the July 2015 development request, stating: “Cathy Franz came to me to ‘confess’ that she was responsible. She didn’t try to offer an excuse or explanation.” Dr. Hastrup further explained that “I do know that as our office manager, Cathy’s responsibilities extended beyond billing and included assisting Dr. Smith with the recruitment of the many new physicians necessary . . . . I believe that between assisting Dr. Smith with the very significant recruitment responsibilities and the conversion to ICD10 Coding she must have been overwhelmed and those factors must have prevented her from taking the necessary steps to assure that Medicare enrollment requirements were being met.” CMS Ex. 7 at 30-31. Likewise, in its request for reconsideration, Petitioner stated that it “acknowledges and regrets that it made an administrative mistake by not responding to the CMS contractor’s request for additional information.” CMS Ex. 7 at 14. Petitioner further explained that “the magnitude of this endeavor [of taking over a hospital’s radiology services] and the short timeframe in which it had to be accomplished apparently overwhelmed the ability of its physicians and its staff to focus on issues that they did not fully understand, such as the importance of ensuring timely Medicare enrollment.” CMS Ex. 7 at 14. In fact, Petitioner conceded that “[n]o one at Wishon had any familiarity with the Medicare enrollment process because they had almost exclusively treated children previously, who are not covered by Medicare.” CMS Ex. 7 at 14. that Noridian improperly rejected its July 2015 application because Noridian’s July 24, 2015 request for information “contained a number of factual errors and misleading statements that made it essentially impossible for Wishon to respond.”Petitioner concedes that its July 2015 enrollment application was incomplete because a reassignment of benefits application (i.e., Form CMS-855R) was “missing” from the submission. P. Br. at 13. Petitioner disputes the appropriateness of the other requested development in July 2015. P. Br. at 7-13; see CMS Ex. 2. Petitioner has not contended, much less submitted supporting evidence thereof, that it “call[ed] into [the] call center” to “verify [its] correspondence address and phone number and all of [its] practice location addresses.” CMS Ex. 2 at 1. And although Petitioner currently argues that it received conflicting deadlines for completion of the development requested in July 2015, there is no such ambiguity regarding the deadline; Noridian directed Petitioner to complete the development no later than August 6, 2015, but also provided notice that if Petitioner did not submit the requested information prior to the regulatory deadline set forth in 42 C.F.R. § 424.525, it could “reject [Petitioner’s] application(s) if [it] do not furnish complete information within 30 days of the initial request.” CMS Ex. 2 at 1. Regardless, Noridian rejected the application on August 24, 2015, after 30 days had elapsed. CMS Ex. 3. P. Br. at 12. However, Petitioner does not have an appeal right

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with respect to the rejection of its application. The applicable regulation is very clear: “Enrollment applications that are rejected are not afforded appeal rights.” 42 C.F.R. § 424.525(d); see James Shepard, M.D., DAB No. 2793 at 8 (2017) (stating that “section 424.525(d) plainly prohibits ALJ or [Departmental Appeals] Board review of that [rejection] decision, stating that ‘rejected’ enrollment applications ‘are not afforded appeal rights’”).

Noridian rejected the incomplete July 16, 2015 application, and therefore, the first application that Noridian could process to approval was the March 4, 2016 application. Pursuant to 42 C.F.R. § 424.520(d), the effective date of Petitioner’s Medicare enrollment and billing privileges is March 4, 2016, the date of receipt of the application that Noridian processed to approval. The earliest possible billing date is February 3, 2016, in accordance with 42 C.F.R. § 424.521(a)(1).

Petitioner argues that it “suffered tremendous hardship” and that CMS “should have exercised its discretion.” P. Br. at 14. However, my review is limited to whether CMS had a legitimate basis for its action. See, e.g., Decatur Health Imaging, LLC, DAB No. 2805 at 8-9 (2017) (“The Board has held that it does not review CMS’s exercise of discretion to take other actions the regulations authorize relating to the enrollment of suppliers and providers” (internal citations omitted).). Petitioner’s request for an effective date of enrollment of July 15, 2015, based on financial hardship amounts to a request for equitable relief, and I simply do not have the authority to grant equitable relief in the form of an earlier effective date of enrollment. US Ultrasound, DAB No. 2302 at 8 (2010) (“[n]either 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.”). Petitioner points to no authority by which I may grant it relief from the applicable regulatory requirements, and I have no authority to declare statutes or regulations invalid or ultra vires. 1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (“[a]n ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground.”).

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IV. Conclusion

For the foregoing reasons, I conclude that the effective date of Petitioner’s Medicare enrollment and billing privileges is March 4, 2016, with a 30-day period for retrospective billing beginning on February 3, 2016.