Dinesh Sethi, M.D., DAB CR5294 (2019)

DECISION

More than two years after Petitioner, Dinesh Sethi, M.D., voluntarily terminated his reassignment of benefits to Dinesh Sethi Physician, PC, Petitioner filed an enrollment application to re-establish those billing privileges.  There is no genuine dispute as to any material fact and CMS is entitled to judgment as a matter of law that the effective date of Petitioner’s reassignment of benefits to Dinesh Sethi Physician, PC remains April 28, 2017.

I. Background and Procedural History

Petitioner, a physician, previously had billing privileges linked to Dinesh Sethi Physician, PC, a group practice he solely owned (herein “the practice”).  See CMS Exhibit (Ex.) 1 at 48-49, 51, 54.  In August 2015, Petitioner asked National Government Services (NGS), a Medicare administrative contractor, to “[p]lease deactivate” several provider transaction access numbers (PTANs),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). to include the PTAN that was linked to the practice.  CMS

Page 2

Ex. 1 at 48.  On August 27, 2015, NGS issued a letter in which it, inter alia, terminated Petitioner’s billing privileges linked with the practice, effective September 1, 2014.  CMS Ex. 1 at 49.

On April 28, 2017, the practice submitted an enrollment application, Form CMS-855B, via the internet-based Provider, Enrollment, Chain, and Ownership System (PECOS) in which it updated its Medicare enrollment record.  CMS Ex. 1 at 51-56.  NGS approved the application on June 14, 2017, with an effective date of April 28, 2017.  CMS Ex. 1 at 57-58.  On July 13, 2017, Petitioner submitted an application to reassign his benefits to the practice in order to re-establish his billing privileges linked to the practice.  CMS Ex. 1 at 62-66.  In a letter dated September 21, 2017, NGS granted Petitioner’s application to reassign benefits to the practice, effective June 17, 2017.  CMS Ex. 1 at 67-69.

In a letter dated August 8, 2017, Petitioner requested reconsideration of the effective date assigned for his reassignment of benefits to the practice, at which time he requested an effective date of April 15, 2017, for his billing privileges linked to the practice.  CMS Ex. 1 at 7-8.

NGS issued a reconsidered determination on October 19, 2017, in which it assigned an earlier effective date of Petitioner’s reassignment of benefits of April 28, 2017.  CMS Ex. 1 at 1-4.  NGS explained that it assigned an earlier effective date because “the provider should have been asked to submit an 855R application to add a reassigning provider, as the group cannot be active without reassignments.”  CMS Ex. 1 at 2.  However, with respect to the practice’s enrollment, NGS remarked:  “Because Dinesh Sethi was the only provider reassigning to Dinesh Sethi Physician, PC, the organization should have been terminated upon termination of the reassignment.”  CMS Ex. 1 at 2.  NGS explained that the practice “should not be active without reassignments, and should have been notified via the Change of Application of 4/28/2017,” and that, “[f]or this reason, we will are [sic] changing the effective date of the provider’s reassignment PTAN . . . .”  CMS Ex. 1 at 2-3.  NGS assigned Petitioner an effective date of reassignment of benefits of April 28, 2017, which is the day it received the practice’s Form CMS-855B internet application.  CMS Ex. 1 at 3.

Petitioner submitted a request for an administrative law judge (ALJ) hearing that was received on December 6, 2017, in which he sought an earlier effective date of his reassigned benefits of April 15, 2017.  ALJ Keith W. Sickendick issued an Acknowledgment and Prehearing Order (Prehearing Order) on December 14, 2017, at which time he directed the parties to file their respective prehearing exchanges.This case was reassigned to me on March 8, 2019. CMS filed a prehearing brief and memorandum of law in support of its motion for summary

Page 3

judgment (CMS Br.), along with two proposed exhibits (CMS Exs. 1-2).  Petitioner filed a letter, dated February 6, 2018, in lieu of a brief and response to CMS’s motion for summary judgment (P. Br.).  I consider the record in this case to be closed.  Because I grant CMS’s motion for summary judgment, I need not address whether a hearing is necessary.The Prehearing Order directed Petitioner “will advise in . . . its brief whether Petitioner agrees to waive oral hearing and receive a decision based upon the documentary evidence and briefs.” Petitioner did not comply with this directive.

II. Issues

1. Whether summary judgment is appropriate;

2. Whether CMS had a legitimate basis to assign Petitioner an April 28, 2017 effective date for his reassigned benefits.

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.

1. Summary judgment is appropriate because material facts are not in dispute.

Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and the moving party is entitled to judgment as a matter of law.  Senior Rehab. & Skilled Nursing Ctr.,DAB No. 2300 at 19-20 (2010), aff’d, Senior Rehab. & Skilled Nursing Ctr. v. Health & Human Servs.,405 F. App’x 820 (5th Cir. 2010); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).  The moving party must show that there are no genuine issues of material fact requiring an evidentiary hearing and that it is entitled to judgment as a matter of law.  Anderson,477 U.S. at 247-48.  If the moving party meets its initial burden, the non-moving party must “come forward with ‘specific facts showing that there is a genuine issue for trial.’”  Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986) (emphasis omitted).  “To defeat an adequately supported summary judgment motion, the non-moving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact – a fact that, if proven, would affect the outcome of the case under governing law.”  Senior Rehab., DAB No. 2300 at 3.  In determining whether there are genuine issues of material fact for hearing, an ALJ must view the evidence in the light

Page 4

most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor.  Id.

Petitioner does not dispute any material facts and provides no meaningful response to CMS’s motion for summary judgment.  Therefore, summary judgment is appropriate.

2. NGS had a legitimate basis to assign an effective date of April 28, 2017, for Petitioner’s billing privileges linked to the practice.

As a physician, Petitioner is a “supplier” for purposes of the Medicare program.  See CMS Ex. 2 at 2; 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 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).

In his request for hearing, Petitioner seeks an earlier date of April 15, 2017, as the effective date of his billing privileges linked to the practice.  Petitioner did not allege any error on the part of NGS in its assignment of an April 28, 2017 effective date for his billing privileges linked to the practice.  After CMS filed its brief and motion for summary judgment, Petitioner, without providing any supporting arguments or evidence, stated that he was “solely requesting backdating [of his] CMS Medicare enrollment date to April 15, 201[7] from April 28, 201[7].”  P. Br.  Petitioner did not challenge CMS’s allegation that judgment as a matter of law is warranted based on undisputed facts.  Petitioner also did not dispute any material facts, to include that in August 2015 he had submitted a “voluntary request[] that his reassignment to his solely owned practice group . . . be deactivated effective September 1, 2014.”  CMS Br. at 8 (citing CMS Ex. 1 at 48).  Further, Petitioner did not dispute CMS’s allegation that neither he nor the practice had submitted an enrollment application prior to April 28, 2017, for the purpose of allowing him to have billing privileges linked to the practice.  CMS Br. at 10; see CMS Ex. 1 at 51, 61.

Page 5

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 to reassign his benefits that was subsequently approved by a Medicare contractor on behalf of CMS.  However, only because NGS did not ask for a reassignment of benefits application when it received the practice’s April 28, 2017 enrollment update, it granted an earlier effective date of the reassignment of April 28, 2017.  CMS Ex. 1 at 2.  Based on the undisputed facts, the earliest possible effective date for Petitioner’s reassignment of benefits and individual billing privileges linked to the practice is April 28, 2017, which is the date the practice filed the enrollment application updating its Medicare enrollment record.  42 C.F.R. § 424.520(d).  NGS had a legitimate basis to determine that the effective date of Petitioner’s reassignment of benefits to the practice is April 28, 2017, in accordance with 42 C.F.R. § 424.520(d).

Petitioner asks that his billing privileges date back to the first date of service on April 15, 2017, but I cannot grant such a request because the effective date of billing privileges is the later of the date of filing of the Medicare enrollment application that was approved or the date a supplier begins furnishing services at a new practice location.  42 C.F.R. § 424.520(d).  Petitioner filed the enrollment application later than the first date of service on April 15, 2017, and his reassignment of benefits to the practice cannot be effective prior to the date of submission of the enrollment application on April 28, 2017.  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).

Although Petitioner provides no legal basis to support an earlier effective date of billing privileges, he presents the equitable argument that “[t]he amount of paperwork in setting up [his] corporation was overwhelming.”  To the extent that Petitioner’s request for an earlier effective date of his reassigned benefits is based on principles of equitable relief, I cannot grant relief in equity.  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 him 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 . . . .”).

Page 6

V. Conclusion

For the foregoing reasons, I grant summary judgment in favor of CMS.  There is no genuine dispute of material fact, and CMS had a legitimate basis to assign an April 28, 2017 effective date of Petitioner’s individual billing privileges linked to Dinesh Sethi Physician, PC.