Sandeep Gupta, M.D., et al., DAB CR5617 (2020)

DECISION

Petitioners here are a group of physicians and nurse practitioners employed by Premier Health Specialists, Inc., a medical practice located in Ohio.  Petitioners participate in the Medicare program, and sought to reassign their Medicare billing privileges to Premier Health.  The Centers for Medicare & Medicaid Services (CMS) granted their enrollment applications with a retrospective billing date of April 10, 2017 (and, by inference, an effective date of May 10, 2017).  Petitioners have challenged this billing date, which I treat as a challenge to the effective date.  See 42 C.F.R. § 498.3(b)(15).  Because the facts and legal issues underlying these appeals are virtually identical, I have consolidated them (originally C-18-247 through 18-258).  Consolidation Order (January 19, 2018).1

For the reasons set forth below, I find that May 10, 2017, is the earliest possible effective date for the reassignments and that CMS had the authority to grant Petitioners a retrospective billing date of April 10, 2017.

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Background

In letters dated May 23, 2017 (Petitioners Gupta, Waissbluth, Solomito, Saha, Malott, and Kelly); May 24, 2017 (Petitioner Sidhu); May 25, 2017 (Petitioners Usmani and Khalid); and May 26, 2017 (Petitioners Brown, Daniel, and Atkinson), the Medicare contractor, CGS Administrators, advised Petitioners that it approved their Medicare enrollments with billing dates of April 10, 2017 (which means May 10, 2017 “effective dates”).  ALJ Ex. 1 at 3-5; ALJ Ex. 2 at 4-6; ALJ Ex. 3 at 4-6; ALJ Ex. 4 at 4-6; ALJ Ex. 5 at 4-6; ALJ Ex. 6 at 4-6; ALJ Ex. 7 at 4-6; ALJ Ex. 8 at 4-6; ALJ Ex. 9 at 4-6; ALJ Ex. 10 at 3-5; ALJ Ex. 11 at 4-6; CMS Ex. 5 at 4-6.2

In a consolidated request, dated June 29, 2017, Petitioners sought reconsideration, asking that that their “effective dates” be changed to January 30, 2017, which was when they joined Premier Health.  ALJ Ex. 1 at 12-13; ALJ Ex. 2 at 16-17; ALJ Ex. 3 at 16-17; ALJ Ex. 4 at 16-17; ALJ Ex. 5 at 13-14; ALJ Ex. 6 at 13-14; ALJ Ex. 7 at 16-17; ALJ Ex. 8 at 14-15; ALJ Ex. 9 at 17-18; ALJ Ex. 10 at 16-17; ALJ Ex. 11 at 17-18; CMS Ex. 5 at 13-14.

In separate reconsidered determinations, dated October 4, 5 and 6, 2017, the contractor affirmed the April 10 retrospective billing dates and, by inference, the May 10 effective dates.  ALJ Ex. 1 at 15-18; ALJ Ex. 2 at 19-22; ALJ Ex. 3 at 19-22; ALJ Ex. 4 at 19-22; ALJ Ex. 5 at 16-19; ALJ Ex. 6 at 16-19; ALJ Ex. 7 at 19-22; ALJ Ex. 8 at 17-20; ALJ Ex. 9 at 20-23; ALJ Ex. 10 at 19-22; ALJ Ex. 11 at 20-23; CMS Ex. 5 at 16-19.

Petitioners appealed.

The parties have filed briefs and cross-motions for summary judgment.  CMS responded to Petitioner’s motion, and Petitioner replied to CMS’s response.

Because I was late in consolidating these cases, CMS filed a separate motion and brief, along with five exhibits, for each of the cases.  For the individual case originally docketed as C-18-258, CMS submitted exhibits are marked CMS Exs. 1-5.  When I consolidated the cases, I added to this file, marked as ALJ Exs. 1-11, CMS Ex. 5 from each of the other consolidated cases.  The remaining exhibits were virtually identical so it wasn’t necessary to add them to this record.

I find that this matter may be decided on the written record, without considering whether the standards for summary judgment are satisfied.  The initial order in this case instructed the parties to list any proposed witnesses and to submit their written direct testimony.  Acknowledgment and Pre-hearing Order at 3, 5 (¶¶ 4(c)(iv), 8) (December 5, 2017).  The

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order also directed the parties to indicate which, if any, of the opposing side’s witnesses the party wished to cross-examine and explained that an in-person hearing would be needed only if a party wishes to cross-examine the opposing side’s witness.  Id. at 5-6 (¶¶ 9, 10).  Neither party proposed to call any witnesses.  An in-person hearing would therefore serve no purpose, and I may decide this case based on the written record without considering whether the standards for summary judgment are met.

Discussion

CMS properly determined the effective date for Petitioners’ reassignments to Premier Health because that date can be no earlier than the date they filed their reassignment applications.3

Program requirements.  To receive Medicare payments for services furnished to program beneficiaries, a Medicare supplier must be enrolled in the Medicare program.  Social Security Act (Act) § 1861(d); 42 C.F.R. § 424.505.  “Enrollment” is the process used by CMS and its contractors to:  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. 

A supplier (which includes physicians and non-physician practitioners) who is enrolled in the Medicare program may reassign his/her Medicare payments to an employer.  Act § 1842(b)(6); 42 C.F.R. § 424.80(b)(1); see Act § 1861(d).  To do so, the supplier submits an enrollment application, Form CMS-855R (reassignment application).  71 Fed. Reg. 20,754, 20,756 (Apr. 21, 2006) (eff. June 20, 2006); Gaurav Lakhanpal, MD, DAB No. 2951 (2019).

Under section 424.520(d), the effective date for billing privileges for physicians and non-physician practitioners “is the later of” the date of filing a subsequently-approved enrollment application or the date the practitioner first began furnishing services at a new practice location.  (Emphasis added).  The date of filing is the date the Medicare contractor receives an application.  Lakhanpal, DAB No. 2951 at 2; Karthik Ramaswamy, M.D., DAB No. 2563 at 3 (2014).

If a physician or non-physician practitioner meets all program requirements, CMS may allow it to bill retrospectively for up to “[t]hirty days prior to [its] effective date if circumstances precluded enrollment in advance of providing services to Medicare beneficiaries . . . .”  42 C.F.R. § 424.521(a)(1).

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Medicare contractors create confusion when they conflate the effective date with the retrospective billing date, as the contractor did here.  The original notice letters give April 10, 2017, as the “effective date,” which it is not.  It is the retrospective billing date.  The reconsidered determinations did not exactly correct the inaccuracy because they also refer to April 10 as the “effective date.”  The distinction is important; I have the authority to review “the 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.

Petitioners’ reassignment applications.  In January 2017, Petitioners’ (then) medical practice joined Premier Health and, on January 14, 2017, Premier Health submitted to the Medicare contractor a change-of-information application, Form CMS-855B.  The contractor rejected Premier Health’s application because of problems with the listed practice locations and signatures.  CMS Ex. 3.  Premier Health subsequently submitted revised applications, and the contractor approved the changes, effective May 11, 2017.  CMS Ex. 4.  That determination is not the subject of this appeal.4

On May 10, 2017, Petitioners submitted to the contractor, via PECOS, their Form CMS-855R applications to reassign their billing privileges to Premier Health.5   ALJ Ex. 1 at 1; ALJ Ex. 2 at 1; ALJ Ex. 3 at 1; ALJ Ex. 4 at 1; ALJ Ex. 5 at 1; ALJ Ex. 6 at 1; ALJ Ex. 7 at 1; ALJ Ex. 8 at 1; ALJ Ex. 9 at 1; ALJ Ex. 10 at 1; ALJ Ex. 11 at 1; CMS Ex. 5 at 1.  As noted above, the contractor approved the applications, with an effective date of May 10, 2017, and a retrospective billing date of April 10. 

Thus, the date Petitioners filed their subsequently-approved reassignment applications – May 10, 2017 – is the correct effective date for the reassignments.  42 C.F.R. § 424.520(d). 

Petitioners argue that section 424.520(d) applies to initial enrollments only and not to reassignments for already-enrolled suppliers.  The Departmental Appeals Board has rejected this position, pointing out that section 424.520(d) sets the effective date based on the filing of an enrollment application and the reassignment process compels the supplier to file an enrollment application in order to alter the recipient of the payments.  Section 424.520(d) therefore governs reassignments as it does all other Medicare enrollments.  Lakhanpal, DAB No. 2951 at 5 n.5.

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Petitioners also argue that they are entitled to equitable relief based on the contractor representative’s purported mishandling and rejection of Premier’s Form CMS-855B, which, according to Petitioners, delayed them from filing their reassignment applications.  I reject this argument for two reasons.  First, it is well-settled that I have no authority to review the contractor’s rejection of an application.  Id. at 8.  Second, I have no authority to grant Petitioner an earlier effective date based on equitable or policy arguments.  Lakhanpal, DAB No. 2951 at 7-8; Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 at 9.

Conclusion

Because Petitioners filed their subsequently-approved applications on May 10, 2017, May 10 is the earliest possible effective date for their Medicare reassignment.

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APPENDIX

1. The individual petitioners are listed in the attached appendix by the docket numbers they were assigned prior to consolidation of the cases.  The provider transaction access number (PTAN) of each petitioner is also listed.
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2. I discuss below the difference between the effective date and the retrospective billing date.
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3.  I make this one finding of fact/conclusion of law.
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4. Petitioners also submitted change-of-information applications, Form CMS-855I, which the contractor approved; those determinations are not part of this appeal.
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5. CMS’s electronic process for submitting enrollment applications is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).
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