Sangjin Oh, MD, PA, DAB CR5630 (2020)

DECISION

The effective date of the Medicare enrollment of Petitioner, Sangjin Oh, MD, PA, is May 15, 2019, with retrospective billing privileges authorized beginning April 15, 2019.

I.  Background and Procedural History

The Maryland Institute of Neurological Disorders and Sleep, P.A. (herein “MINDS”), which had been owned by Sangjin Oh, MD, and Muhammad Dughly, MD, had been enrolled as a supplier in the Medicare program.  See Centers for Medicare & Medicaid Services (CMS) Ex. 1 at 1; Petitioner Brief (P. Br.).  Dr. Dughly passed away in October 2018.  P. Ex. 2; see CMS Exs. 1 at 1; 6 at 1.  Thereafter, in a November 2, 2018 letter, Novitas Solutions (Novitas), a Medicare administrative contractor, informed MINDS that the Social Security Administration had notified Novitas of Dr. Dughly’s passing.  CMS Ex. 1 at 1.  Novitas directed MINDS to update its Medicare enrollment record by submitting a Form CMS-855B enrollment application within 90 days.  CMS Ex. 1 at 1.  Novitas explained that it would deactivate MINDS’s Medicare billing privileges if it did not timely comply with the request.  CMS Ex. 1 at 1.  On February 1, 2019, after MINDS

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did not update its enrollment record as requested, Novitas informed MINDS that it had deactivated its enrollment, effective that same day.  CMS Ex. 2 at 1.

MINDS submitted a Form CMS-855I1 enrollment application that was received on April 8, 2019.2   CMS Ex. 3 at 40.  In letters dated April 16 and 17, 2019, Novitas directed Dr. Oh to submit an updated Medicare Participation Agreement and “proof of ownership to support Sangjin Oh is the sole owner.”  CMS Ex. 4 at 1, 4.  In responses that same month, Petitioner submitted Board of Directors minutes from a November 28, 2018 meeting (reflecting discussions by Dr. Oh, acting as both Chairman and Secretary, as the only director present), and a Request for Taxpayer Identification Number and Certification form for MINDS, dated February 7, 2019, in which Dr. Oh indicated a “tax classification” of “[i]ndividual/sole proprietor or single-member LLC.”  CMS Ex. 5 at 2, 4.  On May 17, 2019, Novitas rejected MINDS’s Form-855I enrollment application because it did not provide “[p]roof of ownership to support Sangjin Oh as the sole owner.”  CMS Ex. 7 at 1.

Petitioner submitted another Form CMS-855I enrollment application electronically through CMS’s Provider Enrollment, Chain, and Ownership System (PECOS) on May 15, 2019, in which it listed Petitioner by name3 along with Petitioner’s National Provider Identifier (NPI).4   CMS Ex. 8 at 1-3.  Petitioner reported that Dr. Oh was its sole owner, effective May 15, 2019.  CMS Ex. 8 at 5.  Petitioner reported that the application was submitted because “Existing Practitioner is Adding a Professional Corporation, Professional Association, or Limited Liability Company” to its enrollment record.  CMS Ex. 8 at 1.

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Novitas approved, inter alia, Petitioner’s enrollment application on June 5, 2019, at which time it assigned an effective date of enrollment of April 15, 2019.5   CMS Ex. 9 at 1-2.

Petitioner submitted a request for reconsideration dated June 14, 2019, in which it reported that, following receipt of the February 1, 2019 letter deactivating MINDS’s Medicare enrollment, it “had to set up and apply for a new corporation.”  CMS Ex. 6 at 1.  Petitioner explained that after Novitas requested that it verify its ownership of MINDS, it was unable to comply with the request because Dr. Dughly’s estate was in probate.  CMS Ex. 6 at 1.  Petitioner further explained that it had to start a new corporation and obtain a new NPI, bank account, and employer identification number.  CMS Ex. 6 at 1.  Petitioner requested a February 1, 2019 effective date for its billing privileges.  CMS Ex. 6 at 1.

Novitas issued a reconsidered determination on September 11, 2019, in which it explained that it had received Petitioner’s application to “enroll Sangjin Oh, MD and a new sole ownership under Sangjin Oh, MD PA. . . .” on May 15, 2019.  CMS Ex. 10 at 3.  Novitas explained that “[b]ased on the web CMS-855I enrollment application being received on May 15, 2019, the effective date of Medicare billing privileges is May 15, 2019[,]” with retrospective billing authorized pursuant to 42 C.F.R. § 424.521(a) beginning April 15, 2019.  CMS Ex. 10 at 3-4.

Petitioner submitted a request for an administrative law judge (ALJ) hearing that was received on October 28, 2019.  The Civil Remedies Division issued my standing pre-hearing order (Pre-Hearing Order) on November 8, 2019.  CMS filed a brief and motion for summary judgment (CMS Br.), along with ten proposed exhibits (CMS Exs. 1-10).  Petitioner filed a pre-hearing brief and motion for summary judgment, 6 along with 15

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exhibits (P. Exs. 1-15).  In the absence of any objections, I admit CMS Exs. 1-10 and P. Exs. 1-15 into the evidentiary record.

A hearing for the purpose of cross-examination is unnecessary because neither party has identified any proposed witnesses who would testify at an oral hearing.  Pre-Hearing Order, § 12-14.  I consider the record in this case to be closed, and the matter is ready for a decision on the merits.7

II.  Issue

Whether the effective date of Petitioner’s Medicare enrollment and billing privileges is May 15, 2019, with retrospective billing beginning April 15, 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 Analysis8

Pursuant to 42 C.F.R. §§ 424.520(d) and 424.521(a)(1), the effective date of Petitioner’s Medicare enrollment and billing privileges is May 15, 2019, which is the date Novitas received the enrollment application that it processed to approval, with retrospective billing privileges authorized beginning April 15, 2019.

As a clinic/group practice, Petitioner is a “supplier” for purposes of the Medicare program.  See CMS Ex. 8 at 1; 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 that seeks

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billing privileges under 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.’”  Id. at 2-3 (citing 42 C.F.R. § 424.520(d)).

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).  Even though Petitioner argues that it began seeing patients in February 2019, it did not submit its enrollment application to Novitas to enroll as a newly created business entity until May 15, 2019.  P. Br.; CMS Ex.  8 at 1, 3.  Therefore, the earliest possible effective date for Petitioner’s enrollment and billing privileges is the later date of May 15, 2019, with retrospective billing beginning on April 15, 2019.  42 C.F.R. §§ 424.520(d), 424.521(a)(1).  Accordingly, I conclude that Petitioner’s billing privileges can begin no earlier than April 15, 2019.

Petitioner does not contend that it, as Sangjin Oh, MD, PA, submitted an application to enroll in the Medicare program prior to May 15, 2019.  Rather, Petitioner argues that Novitas “misled” MINDS for six months and did not inform MINDS that it had to submit documentation showing that its ownership structure had changed to a sole ownership.  P. Br. (“If Novitas had explained this from day one on November 2nd, [the owner] would have dissolved the original practice and applied as a new corporation and recredentialed under the new entity which would have never disrupted the reimbursement process.”); see P. Exs. 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 (exhibits submitted by Petitioner to demonstrate its efforts through April 2019 continue MINDS’s Medicare enrollment).

The petitioner in this case is Sangjin Oh, MD, PA; the petitioner is not MINDS.  The evidence establishes that Petitioner, Sangjin Oh, MD, PA, first submitted an application to enroll as a supplier in the Medicare program on May 15, 2019 (CMS Ex. 8 at 1), and the effective date of Petitioner’s Medicare enrollment is the only issue before me.  Even assuming, for the sake of this discussion, that Novitas provided misinformation to MINDS regarding its enrollment following Dr. Dughly’s passing,9 any purported

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misinformation regarding MINDS’s enrollment is irrelevant to the question of when Petitioner first submitted its application to enroll in the Medicare program.  Petitioner first submitted an application to enroll in the Medicare program on May 15, 2019, and therefore, the effective date of its enrollment can be no earlier than that same date.  42 C.F.R. § 424.520(d).  Further, pursuant to 42 C.F.R. § 424.521(a)(1), retrospective billing can be authorized no more than 30 days earlier, beginning April 15, 2019.

I recognize Petitioner’s allegation that it treated 503 Medicare beneficiaries between February 1 and April 14, 2019, totaling $130,000 in expected reimbursements that it needs “to be able to keep all [its] staff on the payroll.”  P. Br.  I also acknowledge the difficulties Petitioner experienced following the unexpected passing of an owner and partner, and I sympathize with Petitioner’s frustration over what it has described as a “bureaucratic nightmare.”  P. Br.  However, and unfortunately, I am not empowered with the discretion to grant an effective date of enrollment earlier than the date Petitioner submitted its enrollment application, and I cannot authorize billing privileges earlier than 30 days prior to the date Petitioner submitted its enrollment application, because this is the earliest date allowed by law.  Although Petitioner argues it should be entitled to retrospective billing privileges 90 days earlier than the date it submitted its application, apparently pursuant to 42 C.F.R. § 424.521(a)(2), Petitioner acknowledges that a presidentially-declared disaster did not preclude it from enrolling in advance of providing services.  P. Br.  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 it 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 . . . .”).

Novitas did not receive Petitioner’s application to enroll as a Medicare supplier until May 15, 2019; therefore, the pertinent regulation, 42 C.F.R. § 424.520(d), mandates that the effective date of its enrollment is May 15, 2019.  Retrospective billing privileges are permitted no earlier than April 15, 2019, pursuant to 42 C.F.R. § 424.521(a)(1), which allows for retrospective billing privileges no more than 30 days prior to the effective date of enrollment.  Therefore, Novitas had a legitimate basis to assign a May 15, 2019 effective date for Petitioner’s Medicare enrollment and billing privileges, with retrospective billing privileges beginning April 15, 2019.  42 C.F.R. §§ 424.520(d), 424.521(a)(1).

V.  Conclusion

For the foregoing reasons, I uphold the May 15, 2019 effective date of Petitioner’s Medicare enrollment and billing privileges, with retrospective billing authorized beginning April 15, 2019.

1. As relevant here, a Form CMS-855I application is submitted by a solely owned medical practice.  See CMS Ex. 3 at 3 (form instructions).
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2. I summarize the relevant evidence presented by CMS.  I recognize that Petitioner, in its brief, addressed MINDS’s efforts to continue its Medicare enrollment, and submitted supporting evidence detailing these efforts.  I focus on the relevant facts involving Petitioner’s enrollment in the Medicare program.
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3. Petitioner, somewhat confusingly, also listed “Maryland Center [f]or Neurology and Sleep” on this application.  CMS Ex. 8 at 1-2.  Novitas nonetheless accepted this application as Petitioner’s application for enrollment.  See CMS Ex. 9.
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4. 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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5. Although an effective date of enrollment 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).  Novitas used imprecise language when it stated that it had assigned an April 15, 2019 effective date for Petitioner’s enrollment.  In actuality, Novitas assigned a May 15, 2019 effective date of enrollment, 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 April 15, 2019, pursuant to 42 C.F.R. § 424.521(a)(1).
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6. Petitioner, which is pro se, filed multiple versions of its brief.  On December 18, 2019, Petitioner filed notice in which it intended for the version of the brief filed at 10:24 a.m. on December 18, 2019, to be its brief.  I note that Petitioner’s brief is not paginated, and therefore, I do not provide pinpoint citations when referencing Petitioner’s brief.
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7. Because the parties have not identified any witnesses and a hearing is unnecessary, I need not address whether summary judgment is appropriate.
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8. Findings of fact and conclusions of law are in italics and bold font.
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9. I do not need to reach this question and make no finding regarding these allegations.  Nonetheless, I note that MINDS’s submission of a Form CMS-855I application (CMS Ex. 3), rather than the requested Form CMS-855B application (CMS Ex. 1 at 1), put Novitas on notice that MINDS had changed its ownership structure to a solely owned practice.  Novitas expectedly requested documentation supporting a change in ownership structure.  CMS Ex. 4 at 1, 4.
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