Gabriel Cline, PhD and Psych Associates LLC, DAB CR5555 (2020)

DECISION

Wisconsin Physician Solutions (WPS), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), granted Medicare billing privileges to Gabriel Cline, Ph.D. (Petitioner), as sole owner of Psych Associates LLC, effective October 6, 2017, and allowed retrospective billing from September 6, 2017.  Petitioner requested a hearing before an administrative law judge to dispute this effective date.  As explained herein, WPS correctly determined that Petitioner's Medicare enrollment and associated billing privileges became effective October 6, 2017.  I therefore affirm CMS's effective date determination.

I. Background

On May 24, 2017, WPS received a Form CMS-855I (application for individual enrollment) from Petitioner to effect a change of information, listing Psych Associates LLC as his practice location.  CMS Exhibit (Ex.) 1 at 2; CMS Ex. 2.  WPS requested Petitioner revise his application on May 30, 2017.  CMS Ex. 3.  The letter advised Petitioner that to enroll a new private practice, he needed to complete a CMS-855I

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application as an "Initial Enrollment" and submit additional documentation.  Id. at 1.  On May 31, 2017, Petitioner submitted a second CMS-855I application.  CMS Ex. 4.  On June 15, 2017, WPS asked him to revise the second application.  CMS Ex. 5.  WPS advised Petitioner that it might reject his application if he did not furnish complete information "within 30 calendar days from the postmarked date of this letter."  Id. at 1.

On July 14, 2017, WPS notified Petitioner it rejected his CMS-855I applications for failure to provide the requested information within 30 days.  CMS Ex. 6.  The letter notified Petitioner that, "[i]f you still want to enroll in the Medicare program, you will need to address the issues in our June 15, 2017 letter and submit a new application with all required documentation."  Id. at 1.

On September 18, 2017, WPS received a Form CMS-855R (application for group enrollment) from Petitioner.  CMS Ex. 8.  On September 27, 2017, WPS notified Petitioner that it would take no action to process his application because it was not needed.  Id.  On September 27, 2017, WPS also placed a phone call to Petitioner to "let him know the 855R is not needed and he needs to send in an 855I to enroll as a sole prop[rietor]."  CMS Ex. 9.

On October 6, 2017, WPS received a CMS-855I application to enroll Petitioner as the sole owner of Psych Associates LLC.  CMS Ex. 1 at 2; CMS Ex. 10.  WPS approved this application with an effective date of October 6, 2017 and granted 30 days of retrospective billing from September 6, 2017.1   CMS Ex. 11 at 1.

Petitioner requested reconsideration of the effective date determination, arguing that he attempted to comply with WPS's requests multiple times.  CMS Ex. 12.  WPS affirmed its effective date determination in a reconsidered determination on January 2, 2018.  CMS Ex. 1.

On February 12, 2018, the Civil Remedies Division of the Departmental Appeals Board received Petitioner's request for a hearing before an ALJ, and I was designated to hear and decide this case.  On February 15, 2018, I issued an Acknowledgment and Pre‑hearing Order (Pre-hearing Order) that required each party to file a pre-hearing exchange and supporting documents.  Pre-hearing Order ¶ 4.  CMS subsequently filed a Motion for Summary Judgment and Pre-hearing Brief (CMS Br.), along with 13 exhibits (CMS Exs. 1-13).

Petitioner did not file his pre-hearing exchange required by my Pre-hearing Order.  I therefore issued an Order to Show Cause (OSC) on April 27, 2018, giving Petitioner

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until May 7, 2018 to file his pre-hearing exchange and explain his failure to file timely. OSC at 1.

On May 1, 2018, Petitioner filed a response explaining that he had made good faith efforts to comply with instructions given his lack of legal training and resources.  (P. Response at 1).  Petitioner also submitted one supporting document.

I find good cause to allow Petitioner to file out of time.  I also construe Petitioner's response (P. Response) to the OSC to constitute his pre-hearing exchange.  Although the document Petitioner attached to his response is not properly identified or labeled as such, I also accept this document as a proposed exhibit.

II. Decision on the Written Record and Admission of Exhibits

Petitioner did not object to the exhibits offered by CMS.  I admit CMS Exs. 1-13 into evidence.  I also admit Petitioner's supplemental exhibit as P. Ex. 1.  Neither party offered written direct testimony of any witness as part of its pre-hearing exchange, meaning an in-person hearing is not necessary in this matter.  Pre-Hearing Order ¶¶ 8-10; Civ. Remedies Div. P. §§ 16(b), 19(b).  Therefore, I will decide this case on the record, based on the parties' written submissions and arguments.  Civ. Remedies Div. P. § 19(d).  CMS's motion for summary judgment is denied as moot.

III. Issue

The issue in this case is whether WPS, acting on behalf of CMS, properly established October 6, 2017, as the effective date for Petitioner's Medicare billing privileges.

IV. Jurisdiction

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

V. Findings of Fact, Conclusions of Law, and Analysis

A.  Applicable Law

The Act authorizes the Secretary of Health and Human Services to promulgate regulations governing the enrollment process for providers and suppliers.  Act §§ 1102, 1866(j) (42 U.S.C. §§ 1302, 1395cc(j)).  A "supplier" like Petitioner is "a physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services" under the Medicare provisions of the Act.  Act § 1861(d) (42 U.S.C. § 1395x(d)); see also Act § 1861(u) (42 U.S.C. § 1395x(u)).

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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 define "Enroll/Enrollment" as "the process that Medicare uses to establish eligibility to submit claims for Medicare‑covered items and services."  42 C.F.R. § 424.502.  A supplier seeking billing privileges under the Medicare program must "submit enrollment information on the applicable enrollment application.  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).  CMS then establishes an effective date for billing privileges under the requirements stated in 42 C.F.R. § 424.520(d) and may permit a retrospective billing date that is 30 or 90 days prior to the effective date under 42 C.F.R. § 424.521(a)(1)-(2).

B.  Analysis

1. WPS received Petitioner's Medicare enrollment application on October 6, 2017 and subsequently processed that application to approval, making that date the effective date of his enrollment.

The effective date for Medicare billing privileges for physicians, non-physician practitioners, and physician or non-physician practitioner organizations is the later of the "date of filing" or the date the supplier first began furnishing services at a new practice location.  42 C.F.R. § 424.520(d).  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, 69,769 (Nov. 19, 2008); Donald Dolce, M.D., DAB No. 2685 at 8 (2016).  The regulations allow suppliers to "retrospectively bill" Medicare, meaning CMS permits a supplier to bill Medicare for services occurring up to thirty days before the effective date of enrollment, if certain circumstances apply.  42 C.F.R § 424.521(a)(1).

Petitioner does not dispute that he failed to submit a complete Medicare enrollment application to become sole owner of Psych Associates LLC until October 2017.  P. Response.  WPS indicates in its reconsidered determination that it received Petitioner's Medicare enrollment application which it ultimately approved on October 6, 2017.  CMS Ex. 1 at 2.  WPS assigned a retrospective billing date of September 6, 2017, the maximum period permitted.  CMS Ex. 11.  The governing regulations require me to find the effective date of Petitioner's Medicare enrollment to be October 6, 2017.  42 C.F.R. §§ 424.520(d), 424.521(a)(1).

2. I have no authority to review WPS's decision to reject Petitioner's earlier application.

Petitioner has provided no legal basis for his contention that he should be awarded an effective date of May 1, 2017 based on his May 24, 2017 application, which was rejected

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by WPS on July 14, 2017.  CMS Ex. 6.  In fact, Petitioner may not seek my review of WPS's decision to reject that application because that rejection is not an initial determination under 42 C.F.R. § 498.3(b) that affords him appeal rights.  The regulations explicitly state that a rejected application may not be appealed.  42 C.F.R. § 424.525(d); see also James Shepard, M.D., DAB No. 2793 at 8 (2017) (providing 42 C.F.R. § 424.525(d) "plainly prohibits" ALJ review of a rejected application because there are no appeal rights for such a determination).

In any event, the record does not suggest WPS's rejection was improper.  WPS rejected Petitioner's May 24, 2017 application because Petitioner did not provide WPS with information the contractor requested to develop his application within the 30-day timeline.  CMS Exs. 5, 6.  Petitioner did provide a response within 30 days, but provided the wrong type of application.2   CMS Ex. 12 at 13.  Because he had not provided the necessary information to develop and complete his application within 30 days, WPS had a basis to reject his May 24, 2017 application.

3. I have no authority to consider Petitioner's equitable arguments.

Petitioner argues that the requests made of him in the June 15, 2017 and May 30, 2017 development letters led him to believe he had originally filed the proper application.  P. Response at 1.  He further argues that the June 15 letter failed to inform him that he needed to file an enrollment for a new business entity and accuses WPS of withholding this information until September 2017.  Id.

Petitioner may or may not reasonably believe WPS misled him concerning his enrollment application, but in either case I have no authority to grant Petitioner any sort of equitable relief.  See, e.g., 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."); Pepper Hill Nursing & Rehab. Ctr., LLC, DAB No. 2395 at 11 (2011) (holding that the ALJ and Board were not authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements); UpturnCare Co., DAB No. 2632 at 19 (2015) (providing the Board may not overturn denial of provider enrollment in Medicare on equitable grounds).

My jurisdiction is limited to review of CMS's determination of the effective date of Petitioner's enrollment application under 42 C.F.R. § 424.520(d).  As I have explained, WPS properly determined, pursuant to the controlling regulations, that October 6, 2017, is Petitioner's effective date, as that is the date WPS received an application from him

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that it was able to successfully approve.  Therefore, the effective date of October 6, 2017 must stand.

VI. Conclusion

I affirm CMS's determination that Petitioner's effective date for Medicare billing privileges is October 6, 2017, with a retrospective billing date of September 6, 2017.

1. WPS's approval letter to Petitioner incorrectly lists September 6, 2017 as the effective date of enrollment.  However, September 6, 2017 is the date retrospective billing privileges began and October 6, 2017 remains the effective date.  CMS Ex. 11 at 1.
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2. Petitioner contends that CMS's exhibits left out his response to the June 15, 2017 development letter.  P. Response at 1.  However, his July 14, 2017 response is at least documented, if not included, in CMS Exhibit 12.  CMS Ex. 12 at 13.
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