Frank Tarquini, DC, DAB CR5579 (2020)

DECISION

The effective date of the reassignment of Medicare benefits of Petitioner, Frank Tarquini, DC, is June 4, 2019, with retrospective billing privileges authorized beginning May 5, 2019.

I.  Background and Procedural History

Petitioner is a chiropractor.  See CMS Exhibit (Ex.) 2 at 7.  On June 4, 2019, First Coast Service Options, Inc. (First Coast), a Medicare administrative contractor, received Petitioner's Form CMS-855R enrollment application to reassign his benefits to LWC Lake Worth, PLLC.1   CMS Ex. 4 at 4, 6.  Petitioner requested an August 1, 2019 effective date for the reassignment of benefits.  CMS Ex. 4 at 4.  On June 19, 2019, First Coast approved Petitioner's reassignment of benefits, effective August 1, 2019.  CMS Ex. 6 at 1-2.

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On June 26, 2019, a chiropractic assistant employed by Live Well Chiropractic sent a letter to First Coast on Petitioner's behalf requesting a "correction to have our office Medicare effective date start on 08/01/2018 not 08/01/2019."  CMS Ex. 8 at 1, 7-8 (emphasis omitted).  The letter explained that there "was a typo on the initial enrollment form."  CMS Ex. 8 at 1.  At that time, Petitioner submitted another Form CMS-855R application in which he requested an effective date of August 1, 2018, for his reassignment of benefits.  CMS Ex. 8 at 4, 7-8.

On July 30, 2019, Petitioner submitted a letter to appeal the "effective date of current reassignment which reflects May 5, 2019 as [he] started rendering services on August 1, 2018."  CMS Ex. 10 at 1.  First Coast accepted this letter as a request for reconsideration of the effective date assigned for Petitioner's reassignment of benefits.  See CMS Ex. 12 at 1.

First Coast issued a reconsidered determination on August 22, 2019, in which it explained that Petitioner's reassignment of benefits application "was processed and approved on July 29, 2019."2   CMS Ex. 12 at 2.  First Coast further explained that "the effective date for the reassignment was amended to May 05, 2019, per Title 42 [C.F.R.] § 424.521(a)(1), up to 30 days from the receipt date of the application."3   CMS Ex. 12 at 2.  First Coast stated that "the effective date was issued correctly in accordance with CMS guidelines," and "this reconsideration has been found unfavorable to the provider."  CMS Ex. 12 at 2.

Petitioner submitted a request for an administrative law judge (ALJ) hearing that was received on September 19, 2019.  Thereafter, the Civil Remedies Division issued my standing pre-hearing order (Pre-Hearing Order) that directed the parties to file their respective pre-hearing exchanges.  CMS filed a pre-hearing brief and motion for

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summary judgment, along with twelve proposed exhibits (CMS Exs. 1-12).  Petitioner filed a "brief in support of motion for summary judgment" (P. Br.) and four exhibits (P. Exs. 1-4).

Neither party has submitted written direct testimony, as addressed in sections 11 through 13 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.4

II.  Issue

Whether the effective date of Petitioner's reassigned Medicare benefits is June 4, 2019, with retrospective billing privileges authorized beginning May 5, 2019.

III.  Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R § 498.3(b)(15); Victor Alvarez, M.D., DAB No. 2325 at 8-12 (2010); see also 42 U.S.C. § 1395cc(j)(8).

IV.  Findings of Fact, Conclusions of Law, and Analysis5

Pursuant to 42 C.F.R. § 424.520(d), the effective date of Petitioner's reassignment of benefits is June 4, 2019, which is the date of receipt of the Medicare enrollment application that First Coast was able to process to approval, and retrospective billing privileges are authorized beginning May 5, 2019, pursuant to 42 C.F.R. § 424.521(a)(1).

As a chiropractor, Petitioner is a "supplier" for purposes of the Medicare program.  See CMS Ex. 2 at 7; 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 who 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

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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."  Id.; see also 42 C.F.R. § 424.510(d) (listing enrollment requirements).  When the contractor approves an enrollment application, it sets the effective date for approval of billing privileges.  See Alexander C. Gatzimos, MD, JD, LLC, DAB No. 2730 at 2 (2016).  "The effective date of a physician's or physician organization's enrollment in Medicare is 'the later of the date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor or the date [the supplier] first began furnishing services at a new practice location.'"  Alexander C. Gatzimos, DAB No. 2730 at 2-3, citing 42 C.F.R. § 424.520(d); see Gaurav Lakhanpal, MD, DAB No. 2951 at 6 (2019) ("the effective date of . . . reassignment of billing privileges is . . . the date that [the contractor] received [the] reassignment application that was subsequently approved.").

The Departmental Appeals Board (DAB) has explained that "[t]he governing law on how CMS (and its Medicare contractors) determine the effective date for [suppliers] applying for Medicare billing privileges is set by regulation" at 42 C.F.R. § 424.520(d).  Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017).  Petitioner argues that he had already been practicing at his employer's practice location in the city of Davie, and that he began working at the Greenacres office (LWC Lake Worth) when another chiropractor made a "last minute" decision to not accept a position with that office.  P. Br. at 1-2; see CMS Exs. 5, 7 (letters from First Coast approving Petitioner's reassignment of benefits to Live Well Chiropractic, LLC, in Davie, FL).  However, Petitioner's "last minute" decision to work at the Greenacres practice location does not justify his 10-month delay in submitting an application to reassign benefits to LWC Lake Worth.  Petitioner also argues that he was "unaware the second Tax ID number belonging to the [LWC Lake Worth] location would require a new reassignment of benefits application."  P. Br. at 2.  Unfortunately, ignorance of enrollment requirements is not a basis to support the assignment of an effective date that is contrary to law.6   Further, it is plainly evident that the Davie and Greenacres practice locations are separate entities that would require separate reassignments, as evidenced by the fact that these entities each have a unique name, city, Tax Identification Number (TIN), National Provider Identifier (NPI)7 and

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Provider Transaction Access Number (PTAN).8   Compare CMS Ex. 3 at 4 (reassignment of benefits to Live Well Chiropractic, PLLC in Davie, FL, TIN # 27-3685864, NPI # 1710273065, PTAN # FG135A) with CMS Ex. 4 at 4  (reassignment of benefits to LWC Lake Worth, PLLC in Greenacres, FL, TIN # 83-0855160, NPI # 1871089789, PTAN # LB306).

Petitioner did not submit an application to reassign benefits to LWC Lake Worth in Greenacres until 10 months after he began treating patients at that location, and that application was not received until June 4, 2019.  CMS Ex. 4 at 6.  Therefore, the earliest possible effective date for Petitioner's reassignment of benefits is June 4, 2019, pursuant to 42 C.F.R. § 424.520(d), with billing privileges authorized beginning 30 days earlier on May 5, 2019, pursuant to 42 C.F.R. § 424.521(a)(1).  Accordingly, I conclude that, pursuant to 42 C.F.R. § 424.520(d), the effective date of Petitioner's reassignment of benefits is June 4, 2019, with retrospective billing privileges beginning May 5, 2019.  See, e.g., Gaurav Lakhanpal, DAB No. 2951 at 6 (2019).

To the extent that Petitioner's request for relief is based on principles of equitable relief, I cannot grant such relief.  US Ultrasound, DAB No. 2302 at 8 (2010) ("Neither the ALJ nor the [DAB] 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 . . . .").

V.  Conclusion

For the foregoing reasons, I uphold the June 4, 2019 effective date of Petitioner's reassigned Medicare benefits, with retrospective billing authorized beginning May 5, 2019.

1. The envelope containing the application had a return address listing "Live Well Chiropractic" at an address on Lake Worth Road in Greenacres, Florida.  CMS Ex. 4 at 6.
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2. Neither party submitted a July 29, 2019 initial determination as a proposed evidentiary exhibit.
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3. Although an effective date of a reassignment of benefits 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 used imprecise language when it stated that it had assigned a May 5, 2019 effective date for Petitioner's reassignment of benefits.  In actuality, First Coast assigned a June 4, 2019 effective date of for the reassignment of benefits, based on the receipt date of the application, pursuant to 42 C.F.R. § 424.520(d), and it authorized retrospective billing privileges beginning 30 days earlier, on May 5, 2019, pursuant to 42 C.F.R. § 424.521(a)(1).
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4. Because a hearing is unnecessary, I need not address whether summary judgment is appropriate.
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5. Findings of fact and conclusions of law are in bold and italics.
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6. The Form CMS-855R application to reassign benefits clearly instructs that "[a] separate CMS-855R must be submitted for each organization/group where a reassignment is being established or terminated."  See CMS Exs. 3 at 3; 4 at 2.
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7. The National Plan & Provider Enumeration System maintains the NPI system, which assigns a single, unique NPI to health care providers.  45 C.F.R. § 162.408.  A provider need not be enrolled in Medicare to have an NPI.  See 45 C.F.R. §§ 162.408, 162.410, 162.412, 162.414.
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8. 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).
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