Francis Wodie, DPM, DAB CR5363 (2019)

DECISION

Petitioner filed an enrollment application on July 25, 2017, for the purpose of reassigning his benefits to Southernmost Foot & Ankle Specialists. A Medicare administrative contractor processed the application to approval and assigned a July 25, 2017 effective date of reassigned Medicare billing privileges, with retrospective billing allowed beginning June 25, 2017. I affirm the effective date of Petitioner's reassigned billing privileges.

I. Background and Procedural History

Petitioner is a podiatrist. See CMS Exhibit (Ex.) 7 at 4. In January 2017, Petitioner submitted a Form CMS-855R enrollment application to reassign his benefits to Southernmost Foot & Ankle Specialists (the "group practice"). CMS Ex. 2. In a cover letter accompanying Petitioner's application, Ms. Yvette Pena, who identified herself as being affiliated with the group practice's credentialing department, explained that Petitioner had joined the practice on November 1, 2016, and was seeking billing privileges as of that date. CMS Ex. 2 at 1. Petitioner certified and signed section 6A of the Form CMS-855R enrollment application on January 10, 2017. CMS Ex. 2 at 5.

Page 2

Ms. Pena listed herself in section 6B of the application, and she certified and signed the application as a delegated or authorized official on January 10, 2017.An authorized official "means an appointed official (for example, chief executive officer, chief financial officer, general partner, chairman of the board, or direct owner) to whom the organization has granted the legal authority to enroll it in the Medicare program, to make changes or updates to the organization's status in the Medicare program, and to commit the organization to fully abide by the statutes, regulations, and program instructions of the Medicare program." 42 C.F.R. § 424.502. A delegated official "means an individual who is delegated by the 'Authorized Official,' the authority to report changes and updates to the enrollment record. The delegated official must be an individual with ownership or control interest in, or be a W-2 managing employee of the provider or supplier." 42 C.F.R. § 424.502. CMS Ex. 2 at 5. On January 28, 2017, First Coast Service Options, Inc. (First Coast), a Medicare administrative contractor, issued a letter to Petitioner in which it confirmed receipt of the application on January 17, 2017.First Coast addressed the letter to Ms. Pena at the practice's Miami address. CMS Ex. 3 at 1; see CMS Ex. 2 at 1. Petitioner had identified Ms. Pena as his point of contact for any inquiries regarding his enrollment application. CMS Ex. 2 at 5. CMS Ex. 3.

On May 20, 2017, First Coast sent a letter to Petitioner, via Ms. Pena, in which it explained that section 6B of the application "must be completed by a current authorized/delegated official," and requested that Petitioner re-submit section 6B of the application within 30 days. CMS Ex. 4 at 1. First Coast cautioned that it "may reject [Petitioner's] application(s) if [Petitioner] do[es] not furnish complete information within 30 calendar days from the postmarked date of this letter pursuant to Code of Federal Regulations, 42 [C.F.R. §] 424.525." CMS Ex. 4 at 1 (emphasis in original).

First Coast received a re-submission of, inter alia, section 6 of the reassignment of benefits application, dated June 8, 2017. CMS Ex. 5 at 2. Petitioner certified and signed section 6A of the application, and Linda Seldin, DPM, certified and signed 6B of the application as the authorized or delegated official. CMS Ex. 5 at 2.

On June 22, 2017, First Coast informed Ms. Pena, on behalf of Petitioner, that it had rejected the January 2017 application because an authorized or delegated official had not certified and signed the application. CMS Ex. 6 at 1. First Coast explained that pursuant to 42 C.F.R. § 424.425, Petitioner was "required to submit a complete application(s) and all supporting documentation within 30 calendar days from the postmark date of the contractor request for missing/incomplete information." CMS Ex. 6 at 1 (emphasis in original).

Page 3

Petitioner submitted a new reassignment of benefits application with a cover letter dated July 18, 2017. CMS Ex. 7. Petitioner certified and signed section 6A of the application, and Dimitry Sandler, DPM, certified and signed section 6B of the application. CMS Ex. 7 at 3. On November 14, 2017, First Coast issued a letter informing Petitioner that it had approved his reassignment of benefits application and issued a provider transaction access number (PTAN)A PTAN is the "billing number" used by an individual or entity with billing privileges. See, e.g., 42 C.F.R. § 424.550(a). with an effective date of June 25, 2017. CMS Ex. 8 at 2. First Coast explained that it had assigned a June 25, 2017 effective date of billing privileges, which is 30 days prior to its receipt of the application on July 25, 2017, pursuant to 42 C.F.R. § 424.521(a)(1).Although an effective date of enrollment is set in accordance with 42 C.F.R. § 424.520(d), CMS or its contractor may permit retrospective billing for 30 days prior to the effective date if "circumstances precluded enrollment in advance of providing services to Medicare beneficiaries." 42 C.F.R. § 424.521(a)(1). First Coast favorably assigned a June 25, 2017 effective date of enrollment based on its apparent interpretation that the 30-day retrospective billing provision in 42 C.F.R. § 424.521(a) allowed for an earlier date of enrollment. CMS Ex. 8 at 2.

In a letter dated December 5, 2017, Petitioner requested reconsideration of the effective date assigned for his reassigned benefits, stating:

I'm thoroughly frustrated with my effective date assigned to me for attaching me to the group Southernmost Foot and Ankle Specialists. The original 855R that was submitted to Medicare took 6 months to process and deny ... I did not realize that an incompetent person had filled in the organizational signature incorrectly. Once notified, we resubmitted a correct application which Medicare received on 7/25/17. Please reconsider my group effective date back to 12/17/16 as per within Medicare guidelines of submission. In good faith, I had continued to see Medicare patients while the application process dragged on. Please reconsider my effective date to the group.

CMS Ex. 9 at 1.

First Coast issued a reconsidered determination on January 3, 2018, in which it maintained the June 25, 2017 effective date of Petitioner's individual billing privileges. CMS Ex. 1. First Coast explained that it received the enrollment application that it

Page 4

processed to approval on July 25, 2017, and that based on 42 C.F.R. § 424.521(a)(1), it granted retrospective billing privileges 30 days earlier. CMS Ex. 1 at 2.

Petitioner submitted a request for an administrative law judge (ALJ) hearing that was received on March 6, 2018. ALJ Leslie A. Weyn issued an Acknowledgment and Pre‑Hearing Order (Pre-Hearing Order) on March 22, 2018, 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 and motion for summary judgment (CMS Br.), along with nine proposed exhibits (CMS Exs. 1-9). Petitioner, through counsel, filed a response to CMS's brief and motion for summary judgment (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 July 25, 2017 effective date for his reassigned billing privileges, with retrospective billing privileges beginning June 25, 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 podiatrist, Petitioner is a "supplier" for purposes of the Medicare program. See CMS Ex. 7 at 4; see also 42 U.S.C. § 1395x(d); 42 C.F.R. § 400.202 (definition of supplier); 42 C.F.R. § 498.2. A "supplier" furnishes 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;

Page 5

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 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).

1. First Coast received Petitioner's application to reassign his benefits to the group practice on January 17, 2017.

2. An authorized or delegated official for the practice did not certify and sign section 6B of the January 2017 application.

3. On May 20, 2017, First Coast asked Petitioner to resubmit section 6B of the application because the previous application did not include the certification and signature of an authorized or delegated official.

4. Petitioner re-submitted section 6B of the application in June 2017, but the re-submission did not include the certification and signature of an authorized or delegated official.

5. First Coast rejected Petitioner's January 2017 application to reassign benefits on June 22, 2017, because the application had not been certified and signed by an authorized or delegated official.

6. Petitioner submitted a new application to reassign benefits to the group practice that First Coast received on July 25, 2017, and First Coast processed that application to approval.

7. An effective date earlier than July 25, 2017, with retroactive billing privileges beginning June 25, 2017, is not warranted for Petitioner's reassignment of Medicare billing privileges to the group practice.

Page 6

Petitioner seeks an earlier date of December 17, 2016, as the effective date of his reassignment of billing privileges to the group practice, arguing that he is entitled to an effective date of reassigned billing privileges that is 30 days earlierIn actuality, December 17, 2016, is more than 30 days prior to the January 17, 2017 receipt date of the application. than the receipt date of the rejected application that First Coast received on January 17, 2017. P. Br. at 2; see CMS Exs. 3 at 1; 6 at 1. Because First Coast received the Form CMS-855R application that it processed to approval on July 25, 2017 (see CMS Ex. 8 at 1), the earliest possible effective date for Petitioner's reassigned Medicare billing privileges is July 25, 2017, the date of receipt of the application, 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 First Coast allowed Petitioner to bill for services rendered up to 30 days prior to the date of submission of the application, beginning June 25, 2017. CMS Ex. 8 at 1. Pursuant to 42 C.F.R. § 424.520(d), First Coast had a legitimate basis to determine that the effective date of Petitioner's billing privileges is July 25, 2017, with billing authorized beginning June 25, 2017, in accordance with 42 C.F.R. § 424.521(a)(1).

Petitioner essentially ignores CMS's arguments that First Coast correctly determined the effective date of reassigned billing privileges consistent with 42 C.F.R. §§ 424.520(d) and 424.521(a)(1). P. Br.; see CMS Br. at 5-8. Petitioner blames First Coast for his failure to be authorized billing privileges earlier than June 25, 2017, and he apparently rejects that the effective date of his billing privileges was correctly determined based on the date that First Coast received a complete application that it could process to approval.To the extent that Petitioner "did not realize that an incompetent person had filled in the organizational signature incorrectly" on both his January 2017 application and the June 2017 re-submission (CMS Ex. 9 at 1), I point out that Petitioner certified and signed section 6A of each application. CMS Exs. 2 at 5; 5 at 2. Although Petitioner contends that he was prejudiced by First Coast's "gross failure to comply with their own stated timeframes" (P. Br. at 3), he provides no citation to any authority purporting to show that First Coast has a binding obligation to process his application within a specified timeframe. In fact, Petitioner does not cite to any authority in support of his argument; Petitioner's argument, in its entirety, is as follows:

Respondent acknowledges on page 2 that "[i]n January 2017, Dr. Wodie filed a CMS-855R application for reassignment of his Medicare billings privileges to Southernmost Foot & Ankle Specialists. First Coast sent a January 28, 2017 letter acknowledging receipt of the application, followed by a

Page 7

May 20, 2017 letter stating that within 30 days additional information-completion of section 6 of the application with a certification statement and signature by a currently authorized official-was necessary." First Coast took approximately 4 months to "send" a deficiency letter regarding, " ... completion of section 6 of the application with a certification statement and signature by a currently authorized official ... ." This delay prejudiced this provider, who rightfully believed an approval was forthcoming due to the lack of timely denial notification. First Coast's gross failure to comply with their own stated timeframes prejudiced this provider. It is inequitable and unfair to ask this medical provider to forfeit months of billings due to, at worst, an immaterial deviation from First Coasts' [sic] guidelines which they themselves have grossly deviated from in this dispute.

P. Br. at 2-3 (emphasis in original).The argument section of Petitioner's brief consists of two paragraphs, and I have omitted the first paragraph of argument which addresses various Florida cases pertaining to summary judgment. P. Br. at 2. Although Petitioner argued in his request for hearing that he did not receive the May 2017 letter requesting that he submit a corrected copy of section 6B of his application, he abandoned that argument in his brief. See CMS Ex. 5 (Petitioner's response to First Coast's request that he re-submit section 6B of his application). Petitioner utterly fails to recognize that he did not submit a complete application in January 2017, and that despite a warning that he must correct the January 2017 application in order to avoid rejection of the application, he again failed to submit a complete application in May 2017. And after First Coast notified Petitioner on June 22, 2017 that it had rejected the application (CMS Ex. 6), it did not receive a new application to establish reassigned billing privileges until July 25, 2017. CMS Ex. 7; see CMS Ex. 8 at 1. Petitioner has not identified any error on the part of First Coast in the processing of his application, and he has failed to show that First Coast did not have a legitimate basis to assign an effective date of reassigned billing privileges of July 25, 2017, with retroactive billing authorized beginning June 25, 2017, pursuant to 42 C.F.R. §§ 424.520(d) and 424.521(a)(1).

Petitioner does not dispute any of the following key facts: the individual who certified and signed section 6B of his January 2017 application was not an authorized or delegated official; First Coast informed him of this deficiency and allowed him 30 days to submit a corrected application in order to avoid rejection of his application; the individual who certified and signed section 6B of the application in May 2017, in response to First Coast's May 2017 letter, was not an authorized or delegated official; and, First Coast did not receive an application to reassign benefits that could be processed to approval until

Page 8

July 25, 2017. Based on these facts, First Coast had a legitimate basis to assign an effective date of reassigned billing privileges of July 25, 2017, the date it received the application that was subsequently processed to approval, pursuant to 42 C.F.R. § 424.520(d). See Alexander C. Gatzimos, M.D., J.D., 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). First Coast authorized retrospective billing privileges 30 days earlier, on June 25, 2017, which is the earliest date permitted by 42 C.F.R. § 424.521(a).

To the extent that Petitioner's argument is based on principles of equitable relief, I cannot grant such relief. 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 ....").

V. Conclusion

For the foregoing reasons, I uphold the July 25, 2017 effective date of Petitioner's reactivated billing privileges, with retrospective billing beginning June 25, 2017.