Timothy Onyiuke, MD, DAB CR5629 (2020)

DECISION

Petitioner reassigned his right to file claims with and receive payment from Medicare to Skilled Facility Health Care Solutions, Inc. (SFHCS) effective August 8, 2018, with retrospective billing pursuant to the reassignment permitted beginning July 9, 2018.

I. Procedural History

Novitas Solutions, a Medicare administrative contractor (MAC), notified Petitioner by letter dated August 27, 2018, that Petitioner’s Medicare application to reassign his right to file claims with and receive payment from Medicare to SFHCS was approved with retrospective billing privileges effective July 9, 2018.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 8-11.  SFHCS requested a reconsidered determination on Petitioner’s behalf by letter dated September 10, 2018.  CMS Ex. 1 at 5.

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The MAC notified Petitioner by letter dated November 15, 2018, that the reconsidered determination upheld an effective date of reassignment of August 8, 2018, with retrospective billing beginning July 9, 2018.1   CMS Ex. 1 at 1-4.

Petitioner requested a hearing before an administrative law judge (ALJ) on January 8, 2019 (RFH).  The case was assigned to me and an Acknowledgment and Prehearing Order (Prehearing Order) was issued at my direction.

CMS filed a motion for summary judgment with CMS Ex. 1 on February 15, 2019.  On March 14, 2019, Petitioner filed a document that I treat as a response in opposition to the CMS motion for summary judgment (P. Br.).  CMS waived filing a reply brief on April 18, 2019.  Petitioner has not objected to my consideration of CMS Ex. 1 and it is admitted.  Petitioner filed no exhibits with its response in opposition.  However, Petitioner filed several documents with the request for hearing that are relevant to the issues before me.  Petitioner is not represented by counsel and may not have understood the documents filed with the request for hearing should have been marked as exhibits and filed with its opposition.  Out of an abundance of caution, I admit and consider as evidence the documents filed as exhibits A through F attached to the request for hearing.2

II.  Discussion

A.  Applicable Law

Section 1831 of the Social Security Act (the Act) (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B.  Payment under the program for services rendered to Medicare-eligible

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beneficiaries may only be made to eligible providers of services and suppliers.3   Act §§ 1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395(u)(h)(1)).  Administration of the Part B program is through the MACs.  Act § 1842(a) (42 U.S.C. § 1395u(a)).

The Act requires the Secretary of Health and Human Services (the Secretary) to issue regulations that establish a process for the enrollment of providers and suppliers, including the right to a hearing and judicial review of certain enrollment determinations.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).  Pursuant to 42 C.F.R. § 424.505,4 a provider or supplier must be enrolled in the Medicare program and be issued a billing number to have billing privileges and to be eligible to receive payment for services rendered to a Medicare-eligible beneficiary.

The Medicare beneficiary, one who is entitled to benefits under Medicare Part A or enrolled under Part B, is the individual covered by Medicare and entitled to request payment for Medicare-covered health care items and services.  Act § 1802.  The assignment of the right to file a claim for Medicare coverage of health care charges from a Medicare beneficiary to a Medicare-enrolled provider or supplier is limited.  The reassignment of the right to file a Medicare claim from an enrolled provider or supplier to another is very limited.  42 C.F.R. pt. 424, subpt. F.  Reassignment to an employer is

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permitted from a supplier, such as a physician, when reassignment is required as a condition of employment.  42 C.F.R. § 424.80(b)(1).  Reassignment to an entity that bills for a supplier’s services pursuant to a contractual arrangement is also permitted.  42 C.F.R. § 424.80(b)(2).

The Secretary has issued regulations that establish the right to a hearing and judicial review of certain enrollment determinations.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).  Pursuant to sections 1866(h)(1) and (j)(8), a provider or supplier whose enrollment application or renewal application is denied is entitled to an administrative hearing and judicial review.  Appeal and review rights in provider and supplier cases are specified by 42 C.F.R. §§ 424.545 and 498.5.

B.  Issues

Whether I have jurisdiction to review the determination by CMS or a MAC of the effective date of reassignment of the right to file claims with and to receive payment from Medicare;

Whether summary judgment is appropriate; and

The effective date of reassignment.

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

My conclusions of law are set forth in bold text followed by my findings of undisputed fact and analysis.

1.  There is authority for me to conduct review in this case.

Petitioner seeks review of the MAC’s reconsidered determination of the effective date of the reassignment of Petitioner’s right to file claims with and obtain payment from Medicare for care and services delivered to Medicare-eligible beneficiaries.

The Secretary promulgated the regulations at 42 C.F.R. §§ 424.545 and 498.5 that specify review and appeal rights in provider and supplier cases.  The Secretary has not specifically stated that a supplier has a right to ALJ review of a CMS or MAC determination related to reassignment of the right to file claims with and receive payment from Medicare, including the effective date of reassignment.  42 C.F.R. §§ 424.70-.90, 424.545, 498.3(b), 498.5.  However, 42 C.F.R. § 498.3(b)(15), provides that “[t]he effective date of a Medicare provider agreement or supplier approval” is an initial determination.  The Board has given an expansive interpretation to 42 C.F.R. § 498.3(b)(15) and found a right to ALJ review of the effective date of enrollment in Medicare as well as the effective date of the reactivation of billing privileges.  See, e.g.,

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Victor Alvarez, M.D., DAB No. 2325 at 3-10 (2010) (determination of effective date of enrollment in Medicare is an initial determination subject to ALJ review and Board appeal); Urology Group of NJ, LLC, DAB No. 2860 at 6 (2018) (no right to review of a CMS or MAC determination to deactivate billing privileges but right to review of the determination of the effective date of reactivation).  Applying the reasoning of the Board in Alvarez and Urology Group, I conclude that a supplier has the right to ALJ review of the CMS or MAC determination of the effective date of a reassignment.  However, the only determination of CMS or the MAC that is subject to my review in a provider and supplier case is the reconsidered determination.  See 42 C.F.R. § 498.5(l)(1)-(2); Neb Grp. of Ariz. DAB No. 2573 at 7. 

2.  Summary judgment is appropriate.

I have concluded, based on the rationale of the Board in prior cases, that Petitioner has a right to ALJ review of the determination of the effective date of reassignment of his right to file claims with and receive payment from Medicare.  A hearing on the record before an ALJ is required under the Act.  Act §§ 205(b), 1866(h)(1), (j); Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004).  The procedures governing hearings in provider and supplier enrollment cases are at 42 C.F.R. pt. 498.  A party may waive appearance at an oral hearing but must do so affirmatively in writing.  42 C.F.R. § 498.66.  Petitioner has not waived oral hearing.

CMS filed a motion for summary judgment.  Summary judgment is not automatic but is limited to certain specific conditions.  The regulations do not establish or recognize a summary judgment procedure.  However, the Board has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498.  See, e.g., Crestview Parke, 373 F.3d at 748-51; Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997).  The Board has also recognized that the Federal Rules of Civil Procedure do not apply in administrative adjudications such as this, but the Board has accepted that Fed. R. Civ. P. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate.  Furthermore, a summary judgment procedure was adopted as a matter of judicial economy within my authority to regulate the course of proceedings and made available to the parties in the litigation of this case by my Prehearing Order.  The parties were given notice by the Prehearing Order that summary judgment is an available procedural device and that the law as it has developed related to Fed. R. Civ. P. 56 will be applied.  Prehearing Order ¶¶ II.D. & G.

Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law.  In determining whether there are genuine issues of material fact for trial, the reviewer must view the evidence in the light most favorable to the non-moving party,

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drawing all reasonable inferences in that party’s favor.  The party requesting summary judgment bears the burden of showing that there are no genuine issues of material fact for trial and/or that it is entitled to judgment as a matter of law.  Generally, the non-movant may not defeat an adequately supported summary judgment motion by relying upon the denials in its pleadings or briefs but must furnish evidence of a dispute concerning a material fact, i.e., a fact that would affect the outcome of the case if proven.  See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 5 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 5 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein).

The standard for deciding a case on summary judgment and an ALJ’s decision-making in deciding a summary judgment motion differs from that used in resolving a case after a hearing.  On summary judgment, the ALJ does not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence, as would be done when finding facts after a hearing on the record.  Rather, on summary judgment, the ALJ construes the evidence in a light most favorable to the non-movant and avoids deciding which version of the facts is more likely true.  Holy Cross Vill. at Notre Dame, Inc., DAB No. 2291 at 5 (2009).  The Board also has recognized that on summary judgment it is appropriate for the ALJ to consider whether a rational trier of fact could find that the party’s evidence would be sufficient to meet that party’s evidentiary burden.  Dumas Nursing & Rehab., L.P., DAB No. 2347 at 5 (2010).  The Secretary has not provided in 42 C.F.R. pt. 498 for the allocation of the burden of persuasion or the quantum of evidence required to satisfy the burden.  However, the Board has provided some persuasive analysis regarding the allocation of the burden of persuasion in cases subject to 42 C.F.R. pt. 498.  Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005).

In this case, I conclude that Petitioner has failed to show that there is a genuine dispute as to any material fact as discussed hereafter pertinent to determination of the correct effective date of Petitioner’s reassignment of his right to file claims with and receive payment from Medicare.  The facts are undisputed and CMS is entitled to judgment as a matter of law.  Accordingly, I conclude that summary judgment is appropriate.

3.  The effective date of Petitioner’s reassignment of his right to file claims with and receive payment from Medicare, which is determined pursuant to 42 C.F.R. § 424.520(d), is August 8, 2018.

4.  The beginning of the period of retrospective billing privileges on the reassigned claims, which is determined pursuant to 42 C.F.R. § 424.520(d), is July 9, 2018.

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a.  Facts

The parties were advised in the Prehearing Order ¶ II.G that, for purposes of ruling on a motion for summary judgment, a fact alleged and not specifically denied would be accepted as true, and offered evidence would be considered admissible and true absent a specific objection.  The following findings of fact are based upon the undisputed or conceded facts.  I do not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence in deciding a summary judgment motion.  The evidence is viewed in the light most favorable to Petitioner, the nonmovant, with all inferences drawn in Petitioner’s favor.

Petitioner was enrolled in Medicare at all times pertinent to this decision.  On February 2, 2018, the MAC notified Petitioner that his reassignment to SFHCS was approved with an effective date of January 8, 2018.  P. Ex. C at 13 (August 9, 2018 notice correcting February 2, 2018 initial determination).

Petitioner admits that the January 8, 2018 reassignment was based on Petitioner’s Medicare enrollment with practice locations in Maryland.  Petitioner admits that he delivered care and services to Medicare-eligible beneficiaries in the District of Columbia (DC) which was not covered by his existing Medicare enrollment.  SFHCS filed claims with Medicare for services provided by Petitioner in DC and those claims were denied.  The denial of the claims prompted SFHCS on behalf of Petitioner to file a new Medicare enrollment application (CMS-855I) listing DC practice locations and a new reassignment application (CMS-855R) reassigning to SFHCS Petitioner’s right to file claims for payment for care and services he delivered in DC.  RFH at 1; CMS Ex. 1 at 5; P. Br. at 5.

SFHCS used the CMS Provider Enrollment, Chain, and Ownership System (PECOS), an online system, to file the new CMS-855I and CMS-855R.  CMS Ex. 1 at 13-18.  Petitioner does not dispute that the applications were received by the MAC on August 8, 2018.  CMS Ex. 1 at 13, 17.  The applications were processed to approval and Petitioner and SFHCS were notified of the initial determination.  CMS Ex. 1 at 8-11.

b.  Analysis

Petitioner and SFHCS request that the effective date of Petitioner’s reassignment to SFHCS be changed to January 8, 2018.  Petitioner and SFHCS request the change so that the claims for care and services provided by Petitioner in DC from January 8, 2018 through July 8, 2018, can be paid by Medicare.  RFH at 1-3; P. Br. at 6.

A supplier such as Petitioner must be enrolled in Medicare to receive payment for items and services covered by Medicare either from Medicare or the Medicare beneficiary.  42 C.F.R. § 424.505.  To enroll in Medicare, a supplier must submit accurate information on the applicable Medicare enrollment applications, including practice locations and state

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licensure.  42 C.F.R. § 424.510(d)(2)(ii).  Any change in practice location by a physician must be reported within 30 days of the change.  42 C.F.R. § 424.516(d)(iii).  A physician can only reassign a Medicare claim if he or she has the right to file the claim with Medicare or to collect the claim from the beneficiary.  42 C.F.R. § 424.80.

Based on my analysis of Board interpretive rules in various decisions, I have concluded Petitioner has a right to my review of the reconsidered determination of the effective date of Petitioner’s reassignment of his right to file claims with and receive payment from Medicare.  The Secretary’s regulations do not specify how to determine an effective date for an authorized reassignment.  42 C.F.R. pt. 424, subpt. F.  However, CMS has addressed the determination of the effective date of a reassignment by policy or interpretive rules in effect at the time of the reconsidered determination.  The policy was found in the Medicare Program Integrity Manual (MPIM), CMS Pub. 100-08, ch. 15, § 15.5.20 (rev. 717, eff. May 15, 2017).5   MPIM § 15.5.20A required that a CMS-855R be completed and filed by an individual that wanted to reassign benefits to an eligible entity or to terminate a reassignment.  Both the party seeking to reassign (reassignor) and the party to whom reassignment was intended (reassignee) had to be enrolled in Medicare.  A party seeking to reassign that was not enrolled had to submit a CMS-855I concurrently with the CMS-855R to accomplish enrollment, or in this case a change of enrollment to add DC, and reassignment.  If the party receiving the reassignment was not enrolled, that party must file the appropriate version of form CMS-855.  MPIM § 15.5.20A.  The MPIM § 15.5.20E.3 provided:

If the Form CMS-855R is accompanied by an initial Form CMS-855I or submitted as a “stand-alone” form (that is, a Form CMS-855R is submitted as a new reassignment, such as when an enrolled physician who is operating as a sole proprietor joins a group practice and reassigns his benefits to the group), the effective date of enrollment and the reassignment shall be consistent with the 30-day rule (i.e., the later of the date of filing or the date the reassignor first began furnishing services at the new location) specified in section 15.17 of this chapter.

MPIM § 15.5.20E.3.  MPIM § 15.17 (rev. 865, eff. Mar. 12, 2019), which is now in effect, incorporates the provisions of 42 C.F.R. §§ 424.520(d) and 424.521(a), the regulations that govern determination of the effective date of enrollment and authorized

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period of retrospective billing for physicians, non-physician practitioners, physician and non-physician practitioner organizations, and ambulance suppliers.

The effective date of enrollment in Medicare of a physician, nonphysician practitioner, and physician and nonphysician practitioner organizations is governed by 42 C.F.R. § 424.520(d).  The effective date of enrollment for a physician or nonphysician practitioner may only be the later of two dates:  the date when the physician or nonphysician practitioner filed an application for enrollment that was subsequently approved by a Medicare contractor charged with reviewing the application on behalf of CMS; or the date when the physician or nonphysician practitioner first began providing services at a new practice location.  42 C.F.R. § 424.520(d).  An application is “filed” when it is received by the MAC.  Alexander C. Gatzimos, MD, JD, LLC, DAB No. 2730 (2016).

An enrolled physician or nonphysician practitioner may 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.  Retrospective billing for up to 90 days prior to the effective date of enrollment is permitted only in case of a Presidentially-declared disaster pursuant to 42 U.S.C. §§ 5121-5206.  42 C.F.R. § 424.521(a).

Applying the regulations in this case is straightforward.  There is no dispute Petitioner was not enrolled with a practice location in DC from January 8 through July 8, 2018.  CMS Ex. 1 at 5.  There is no dispute that Petitioner’s application to enroll with a practice location in DC and his reassignment of the DC claims for services from January 8 through July 8, 2018, were not received by the MAC until August 8, 2018.  CMS Ex. 1 at 13, 17.  August 8, 2018 is later than January 8, 2018.  Accordingly, the effective date of Petitioner’s enrollment with a DC practice location and his reassignment to SFHCS may only be August 8, 2018.  Pursuant to 42 C.F.R. § 424.521(a), retrospective billing is permissible for only 30 days, in this case, beginning on July 9, 2018.  Retrospective billing for 90 days is not permitted except in the case of a Presidentially-declared disaster, which did not occur in this case.

Petitioner argues that Medicare rules are complicated and that the boundary between DC and Maryland is not always clear.  RFH at 1; P. Br. at 3-5.  Both assertions are correct.  However, the arguments are not grounds for relief.  I have no authority to grant equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010).  Petitioner also argues in his response in opposition to the motion for summary judgment that a “civil remedy” is appropriate because CMS failed to make information regarding enrollment and jurisdictional boundaries readily available and clear.  P. Br. at 4-5.  Petitioner asserts negligent misrepresentation of participation requirements by CMS.  P. Br.at 3-4.  Petitioner cites no authority to support his argument that I may fashion some civil remedy, such as granting Petitioner retrospective billing privileges for a period longer than that provided

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for by the Secretary’s regulations or an order for CMS to pay the reassigned claims.  I am required to follow the Act and regulations and have no authority to declare statutes or regulations invalid or to refuse to follow them.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009).  Furthermore, to the extent that Petitioner seeks a determination that CMS should be estopped from denying Petitioner’s reassigned claims, estoppel against the federal government, if available at all, is presumably unavailable absent “affirmative misconduct,” such as fraud.  See, e.g., Pac. Islander Council of Leaders, DAB No. 2091 at 12 (2007); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990). 

CMS has clearly stated as a matter of policy in the MPIM, §15.5.4.3 (rev. 717, eff. May 15, 2017):

F.  Out-of-State Practice Locations

If a supplier is adding a practice location in another State, a separate, initial Form CMS-855I enrollment application is required for that location even if:

• The location is part of the same organization (e.g., a solely-owned corporation),

• The location has the same tax identification number (TIN) and legal business name (LBN), and

• The location is in the same contractor jurisdiction.

To illustrate, suppose the contractor’s jurisdiction consists of States X, Y and Z. Dr. Jones, a sole proprietor, is enrolled in State X with 2 locations.  He wants to add a third location in State Y under his social security number and his sole proprietorship’s employer identification number.  A separate, initial Form CMS-855I application is required for the State Y location.

This clear statement of policy provided notice that Petitioner needed to file a CMS-855I to inform the MAC and CMS that he was providing care and services in DC.  Having failed to do so, Petitioner had no right to request payment from Medicare or the Medicare beneficiaries to which the services were delivered in DC and he had no ability to reassign the claims to SFHCS.  I conclude there was no negligent misrepresentation of enrollment requirements or any misconduct that might be a basis of concluding estoppel may lie in this case.

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III.  Conclusion

For the foregoing reasons, I conclude that Petitioner reassigned his right to file claims with and receive payment from Medicare to SFHCS effective August 8, 2018, with retrospective billing pursuant to the reassignment permitted beginning July 9, 2018.

1. The reconsidered determination states that the “effective date of the Medicare billing privileges was approved as July 9, 2018.”  CMS Ex. 1 at 2.  However, it is clear from the reconsidered determination that July 9, 2018, was the beginning of the period for retrospective billing.  The reconsidered determination states that the reassignment application (CMS-855R) and the enrollment application (CMS-855I) for Petitioner that were approved were received by the MAC on August 8, 2018.  CMS Ex. 1 at 2.  As explained hereafter, August 8, 2018, must be the date of enrollment and reassignment in this case.
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2. The exhibits are treated and cited as if marked P. Exs. A through F.  Exhibit F is incorrectly marked Exhibit G on the actual document.  Citations to page numbers within the request for hearing and attached exhibits are to the document page counter.
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3. Petitioner is a “supplier” under the Act and the regulations.  A “supplier” furnishes services under Medicare and the term supplier applies to physicians or other practitioners and facilities that are not included within the definition of the phrase “provider of services.”  Act § 1861(d) (42 U.S.C. § 1395x(d)).  A “provider of services,” commonly shortened to “provider,” includes hospitals, critical access hospitals, skilled nursing facilities, comprehensive outpatient rehabilitation facilities, home health agencies, hospice programs, and a fund as described in sections 1814(g) and 1835(e) of the Act.  Act § 1861(u) (42 U.S.C. § 1395x(u)).  The distinction between providers and suppliers is important because they are treated differently under the Act for some purposes.
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4. Citations are to the 2017 revision of the Code of Federal Regulations (C.F.R.) which was in effect at the time of the initial determination, unless otherwise indicated.  An appellate panel of the Departmental Appeals Board (Board) concluded in Mark A. Kabat, D.O., DAB No. 2875 at 9-11 (2018) that the applicable regulations are those in effect at the time of the initial determination.  However, the Board previously concluded that the only determination subject to my review in a provider and supplier enrollment case such as this is the reconsidered determination.  Neb Grp. of Ariz. LLC, DAB No. 2573 at 7 (2014).  In this case, the applicable regulations did not change between the issuance of the initial and reconsidered determinations.
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5. The current revision is 898, which was effective October 7, 2019.  The revision did not cause any substantive change in the provisions applicable at the time of the reconsidered determination in this case.
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