Suo Maw Chou, M.D., DAB CR5281 (2019)

DECISION

After a six-year period in which Petitioner did not maintain individual billing privileges, Petitioner filed an enrollment application on June 23, 2017, for the purpose of obtaining individual billing privileges.  A Medicare administrative contractor assigned a June 23, 2017 effective date for Petitioner’s Medicare billing privileges, with retrospective billing privileges beginning May 24, 2017.  I affirm the effective date assigned for Petitioner’s individual billing privileges.

I.  Background and Procedural History

Petitioner, a physician, had previously been individually enrolled as a supplier in the Medicare program.  Centers for Medicare & Medicaid Services (CMS) Exhibits (Exs.) 1 at 4; 3 at 3.  On April 21, 2011, Petitioner, along with another owner/director of Targee Street Internal Medicine Group (the “group practice”) submitted an enrollment application (CMS Ex.  2 at 1-49), at which time Petitioner reassigned his benefits to the group practice.  CMS Ex.  2 at 50-59.  On May 5, 2011, National Government Services (NGS), a Medicare administrative contractor, issued a letter in which it assigned an

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April 21, 2011 effective date for the group practice’s billing privileges.  CMS Exs.  1 at 9; 3 at 1.  That same day, NGS issued a separate letter in which it terminated Petitioner’s individual provider transaction access number (PTAN),A PTAN is a Medicare-specific number used by an individual or entity with billing privileges.  See, e.g., 42 C.F.R. § 424.550(a). effective May 4, 2011.  CMS Ex.  3 at 3-4.

In October 2016, NGS asked the group practice to revalidate its enrollment record.  CMS Ex.  4 at 1-2.  After the group practice did not respond to the revalidation request, NGS deactivated the group practice’s Medicare billing privileges, effective March 8, 2017.  CMS Ex.  4 at 3-4.

After the group practice’s billing privileges were deactivated, Petitioner submitted an enrollment application, Form CMS-855I, via the internet-based Provider, Enrollment, Chain, and Ownership System (PECOS), to re-establish his individual billing privileges.  CMS Ex.  5 at 1-4.  NGS received the enrollment application on June 23, 2017.  CMS Ex.  5 at 1.  In a letter dated August 11, 2017, NGS informed Petitioner it had granted his request for individual billing privileges, effective May 24, 2017, which is 30 days prior to the June 23, 2017 date of receipt of the enrollment application.NGS favorably assigned a May 24, 2017 effective date of billing privileges based on its apparent interpretation that 42 C.F.R. § 424.521(a)(1) allowed for an earlier effective date of billing privileges based on the 30-day retrospective billing provision contained in that regulation.  See CMS Ex.  5 at 6; but see CMS Brief (Br.) at 5 n. 6 (“In its initial determination, NGS conflates ‘effective date’ with ‘retrospective billing date.’ .  .  .  More accurately, June 23, 2017 is Petitioner’s effective date and May 24, 2017 is Petitioner’s retrospective billing date.”).  CMS Ex.  5 at 5-7.

In a letter received on August 21, 2017, Petitioner requested reconsideration of the effective date assigned for his individual billing privileges.  CMS Ex.  6 at 1-2.  Petitioner requested that the newly assigned PTAN “be active as of March 8, 2017, which is when [his] previous PTAN was terminated.”  CMS Ex.  6 at 2.  Petitioner explained that the practice “ceased being active with NGS Medicare Part B on 3/8/17 yet [he] continued to practice independently as an Internal Medicine Physician.”  CMS Ex.  6 at 2.

NGS issued a reconsidered determination on October 9, 2017, in which it maintained the June 23, 2017 effective date of Petitioner’s individual billing privileges, with retrospective billing privileges beginning May 24, 2017.  CMS Ex.  6 at 7-11.  NGS explained that the effective date was “based on the received date of the approved application,” and that despite a “processing error” in which Petitioner was given a 30-day

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retrospective effective date of billing privileges,” Petitioner “had not provided evidence to support an earlier effective date.”  CMS Ex.  6 at 9.

Petitioner submitted a request for an administrative law judge (ALJ) hearing that was received on November 15, 2017.  ALJ Carolyn Cozad Hughes issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) on December 4, 2017, at which time she directed the parties to file their respective pre-hearing exchanges.This case was reassigned to me on March 8, 2019.  CMS filed a Pre-Hearing Brief With Incorporated Memorandum of Law in Support of Summary Judgment (CMS Br.), along with six proposed exhibits (CMS Exs.  1-6).  Petitioner filed two separate letters, dated January 31, 2018, in lieu of a brief and response to CMS’s motion for summary judgment; I collectively refer to both unpaginated letters as Petitioner’s Brief (P. Br.).

Neither party has submitted written direct testimony, as addressed in sections 8 through 10 of the Pre-Hearing Order.  A hearing for the purpose of cross-examination is therefore unnecessary.  I consider the record in this case to be closed, and the matter is ready for a decision on the merits.Because a hearing is unnecessary, I need not address whether summary judgment is appropriate.

II.  Issue

Whether CMS had a legitimate basis to assign Petitioner a June 23, 2017 effective date for his billing privileges, with retrospective billing privileges beginning May 24, 2017.

III.  Jurisdiction

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

IV.  Findings of Fact, Conclusions of Law, and AnalysisFindings of fact and conclusions of law are in bold and italics.

As a physician, Petitioner is a “supplier” for purposes of the Medicare program.  See CMS Ex.  5 at 1; see also 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202 (definition of supplier); 498.2.  A “supplier” furnishes items or services under Medicare and the term applies to physicians or other practitioners that are not included within the definition of the phrase “provider of services.”  42 U.S.C. § 1395x(d).  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 at 42 C.F.R. Part 424, subpart P, establish the requirements

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for a supplier to enroll in the Medicare program.  42 C.F.R. §§ 424.510 - 424.516; see also 42 U.S.C. § 1395cc(j)(1)(A) (authorizing the Secretary of the U.S. Department of Health and Human Services to establish regulations addressing the enrollment of providers and suppliers in the Medicare program).  A supplier who seeks billing privileges under Medicare “must submit enrollment information on the applicable enrollment application.”  42 C.F.R. § 424.510(a)(1).  “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)(1); see also 42 C.F.R. § 424.510(d) (listing enrollment requirements).

The effective date of billing privileges for physicians is governed by 42 C.F.R. § 424.520(d), which, under the circumstances present here, is the date Petitioner filed the enrollment application that was subsequently approved by a Medicare contractor on behalf of CMS.  The Medicare administrative contractor may authorize the supplier to 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. NGS terminated Petitioner’s individual billing privileges, effective  May 4, 2011.

2. NGS received Petitioner’s enrollment application for purposes of re-establishing his individual billing privileges on June 23, 2017, and NGS ultimately processed that application to approval.

3. An effective date earlier than June 23, 2017, with retroactive billing privileges beginning May 24, 2017, is not warranted for Petitioner’s individual Medicare billing privileges.

Petitioner seeks an earlier date of March 8, 2017, as the effective date of his billing privileges.  NGS received the enrollment application that it processed to approval on June 23, 2017.  Therefore, the earliest possible effective date for Petitioner’s individual Medicare billing privileges is June 23, 2017, 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 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(a)(1), and NGS allowed Petitioner to bill for services effective 30 days prior to the submission of the application, beginning May 24, 2017.  CMS Ex.  5 at 5-7.  Pursuant to 42 C.F.R. § 424.520(d), NGS had a legitimate basis to determine that the effective date of Petitioner’s billing privileges is June 23, 2017, with billing authorized beginning May 24, 2017, in accordance with 42 C.F.R. §§ 424.520(d), 424.521(a)(1).

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Petitioner argues that he did not submit his individual enrollment application prior to June 23, 2017, because he was waiting for a “disposition” on the group practice’s revalidation application, and “[t]he day [he] was notified that the group application was not being revalidated, [he] submitted [his] individual application.”  P.  Br.  Petitioner’s reason for not filing an enrollment application sooner is irrelevant to the question presented of whether NGS acted legitimately when it assigned the effective date of his billing privileges.  The simple fact is that Petitioner did not submit an enrollment application until June 23, 2017, and pursuant to 42 C.F.R. § 424.520(d), individual billing privileges cannot be effective prior to that date.  See Alexander C. Gatzimos, MD, JD, LLC, DAB No. 2730 at 3 (2016) (noting that the effective date of billing privileges is the date of filing of the enrollment application that is approved by the Medicare administrative contractor).

Petitioner asks that “special circumstances be considered with regard to the effective date” of his billing privileges.  P.  Br. at 3.  Petitioner’s request is based on principles of equitable relief, which I cannot grant.  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.”).  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) (“An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground .  .  .  .”).

V.  Conclusion

For the foregoing reasons, I uphold the June 23, 2017 effective date of Petitioner’s reactivated billing privileges, with retrospective billing beginning May 24, 2017.