Terri Flebotte, LCSW, LLC, DAB CR5573 (2020)

DECISION

Terri Flebotte, LCSW, is a clinical social worker, licensed in Montana.  She participates in the Medicare program as a supplier of services, through her company, Terri Flebotte, LCSW, LLC, the petitioner in this case.  Petitioner applied to enroll in the Medicare program.  After rejecting its first enrollment application, the Centers for Medicare & Medicaid Services (CMS) granted its second, with an effective date of March 13, 2017, and a retrospective billing date of February 11, 2017.  Petitioner now challenges that effective date. 

Because Petitioner filed its subsequently-approved enrollment application on March 13, 2017, I find that March 13 is the correct effective date of Petitioner’s enrollment.  CMS had the authority to grant Petitioner a February 11, 2017 retrospective billing date.

Background

In a letter dated May 10, 2017, the Medicare contractor, Noridian Healthcare Solutions, advised Petitioner that it approved its enrollment application with an “effective date” of February 11, 2017.  CMS Ex. 15 at 2-4.  In fact, as explained below, the contractor was granting Petitioner a retrospective billing date of February 11; the effective date of Petitioner’s enrollment was March 13, 2017 (see discussion below).

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Petitioner sought reconsideration, asking that the effective date of its enrollment be made retroactive to December 20, 2016, based on its previous (rejected) application.  CMS Ex. 16.  In a reconsidered determination, dated July 28, 2017, the contractor denied Petitioner the earlier effective date.  CMS Ex. 17.1

Petitioner appealed.

Although CMS has moved for summary judgment, neither party proposes any witnesses, so an in-person hearing would serve no purpose.  See Acknowledgment and Pre-hearing Order at 3, 5 (¶¶ 4(c)(iv), 8-10) (September 7, 2017).  I may therefore decide the case based on the written record without considering whether the standards for summary judgment are satisfied.

With its motion and brief (CMS Br.), CMS submits 17 exhibits (CMS Exs. 1-17).  Petitioner submits a written brief (P. Br.).  In the absence of any objections, I admit into evidence CMS Exs. 1-17.

Discussion

Petitioner filed its subsequently-approved application on March 13, 2017, and its Medicare enrollment can be no earlier than that date.  42 C.F.R. § 424.520(d).2

Enrollment.  Petitioner participates in the Medicare program as a “supplier” of services.  Social Security Act § 1861(d); 42 C.F.R. § 498.2.  To receive Medicare payments for the services it furnishes to program beneficiaries, a prospective supplier must enroll in the program.  42 C.F.R. § 424.505.  “Enrollment” is the process by which CMS and its contractors:  1) identify the prospective supplier; 2) validate the supplier’s eligibility to provide items or services to Medicare beneficiaries; 3) identify and confirm a supplier’s owners and practice location; and 4) grant the supplier Medicare billing privileges. 42 C.F.R. § 424.502.

To enroll, a prospective supplier must complete and submit an enrollment application.  42 C.F.R. §§ 424.510(d)(1), 424.515(a).  An enrollment application is either a CMS-approved paper application or an electronic process approved by the Office of

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Management and Budget.  42 C.F.R. § 424.502.3   When CMS determines that a prospective supplier meets the applicable enrollment requirements, it grants Medicare billing privileges, which means that the supplier can submit claims and receive payments from Medicare for covered services provided to program beneficiaries.  The effective date for its billing privileges “is the later of the date of filing” a subsequently-approved enrollment application or “[t]he date that the supplier first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d) (emphasis added).  The date of filing is the date the Medicare contractor receives an application that it is able to process to approval.  Karthik Ramaswamy, M.D., DAB No. 2563 at 3 (2014).

If a non-physician practitioner meets all program requirements, CMS may allow it to bill retrospectively for up to 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).

The Medicare contractors have created much confusion because they are inclined to conflate the effective date with the retrospective billing date, as the contractor did in this case.  CMS Exs. 15, 17.  The reconsidered determination acknowledges that the contractor received Petitioner’s application on March 13, 2017, but it nevertheless mischaracterizes the “effective date” as February 11, 2017.  CMS Ex. 17 at 2.  In fact, February 11 is the retrospective billing date.  The distinction is important; I have the authority to review “[t]he effective date of . . . supplier approval.”  42 C.F.R. § 498.3(b)(15).  But nothing in the regulations gives me the authority to review CMS’s determinations regarding retrospective billing.

Here, on March 13, 2017, the Medicare contractor received Petitioner’s enrollment application, which it subsequently approved.  CMS Exs. 8, 15;4 see CMS Ex. 17 at 2.  Thus, pursuant to section 424.520(d), the date Petitioner filed its subsequently-approved enrollment application – March 13, 2017 – is the correct effective date of enrollment.

The rejected application.  Petitioner, however, points out that it submitted an earlier application and that it began providing services to Medicare beneficiaries on December 20, 2016.

Petitioner initially applied for Medicare enrollment on January 6, 2017.  CMS Ex. 1.

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The regulations authorize the contractor to reject an application if the supplier fails to furnish complete information within 30 days of the date requested.  42 C.F.R. § 424.525(a)(1).  Here, the contractor deemed Petitioner’s application insufficient, and, in a letter dated January 17, 2017, directed it to submit, within 30 calendar days, a long list of revisions and supporting documentation.  The letter warned that “[w]e may reject your application(s) if you do not furnish complete information within 30 calendar days from the date of this letter . . . .”  CMS Ex. 3 at 1.

Petitioner responded with additional submissions, but, again, the contractor deemed them insufficient.  CMS Exs. 4-6.  In an email and letter dated February 16, 2017, the contractor advised Petitioner that it rejected its enrollment application because it was still incomplete; and all necessary documentation had not been submitted within 30 days.  The letter also advised it that it would have to complete a new Medicare enrollment application.  CMS Ex. 7.

I have no authority to review a rejected application.  42 C.F.R. § 424.525(d); see James Shepard, M.D., DAB No. 2793 at 8 (2017).  Nor may I grant Petitioner an earlier effective date based on any equitable or policy arguments.  Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 at 9 (2019).

Conclusion

Because Petitioner filed its subsequently-approved enrollment application on March 13, 2017, CMS properly granted its Medicare enrollment effective that date.

1. The reconsidered determination also inaccurately refers to February 11, the retrospective billing date, as the “effective date.”
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2. I make this one finding of fact/conclusion of law.
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3. CMS’s electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).
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4. Medicare contractors stamp paper applications with a “Julian date stamp,” which counts the days of the year consecutively.  Here, the first two digits stamped on the application indicate the year – 2017.  The next three digits indicate the date – the 72nd day of 2017, or March 13, 2017.
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