Parmod Mukhi, M.D. and Parmod K. Mukhi M.D., P.C., DAB CR5635 (2020)

DECISION

Wisconsin Physicians Service (WPS), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), granted Medicare billing privileges to Parmod Mukhi, M.D. and Parmod K. Mukhi M.D., P.C. (collectively, Petitioner), effective January 22, 2018, and allowed retrospective billing from December 23, 2017.  Petitioner requested a hearing before an administrative law judge to dispute this effective date.

As explained herein, I find December 26, 2017 to be Petitioner’s effective date of enrollment in the Medicare program, as that is the date he filed the applications CMS subsequently approved.  As CMS has already afforded him 30 days of retrospective billing, Petitioner shall receive payment for billing submitted November 26, 2017 or thereafter.

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I. Background

On December 26, 2017, WPS received a group practice enrollment application from Petitioner through CMS’s Provider Enrollment, Chain, and Ownership System (PECOS).  CMS Exhibit (Ex.) 1 at 1.  That same day, WPS also received a reassignment application from Petitioner to reassign his benefits to his group practice.  CMS Ex. 2 at 1.  On January 23, 2018, WPS requested Petitioner revise his group enrollment application by submitting proof of incorporation for his practice and providing a newly completed and dated certification statement. CMS Ex. 3 at 1.  WPS advised Petitioner that it might reject his application if he did not furnish complete information “within 30 calendar days from the postmarked date of this letter.”  Id.  Petitioner submitted the requested proof of incorporation on February 20, 2018.  CMS Ex. 6.  On February 21, 2018, WPS asked Petitioner to again revise his application and include a new certification statement.  CMS Ex. 7.

Petitioner submitted the requested revisions that same day.  CMS Ex. 8.  On February 26, 2018, WPS notified Petitioner that his group enrollment and individual assignment applications were approved with billing privileges beginning December 20, 2017.1   CMS Exs. 9-10.

Petitioner requested reconsideration of the effective date determination, arguing that his effective date should be October 1, 2016, the date he began treating patients at his group practice.  CMS Ex. 11.  In its reconsidered determination letter, WPS issued a new effective date of January 22, 2018, with retrospective billing privileges beginning on December 23, 2017.2   CMS Ex. 13 at 2.  WPS explained in this letter that the revised effective date was based on the receipt date of Petitioner’s reassignment application.  Id.  According to the PECOS system through which Petitioner electronically filed his enrollment applications, that application was received by CMS on December 26, 2017, but not electronically signed by Petitioner until January 22, 2018.  CMS Ex. 2 at 1.

On May 3, 2018, the Civil Remedies Division received Petitioner’s request for a hearing before an administrative law judge, and I was designated to hear and decide this case.  On May 11, 2018, I issued an Acknowledgment and Pre-hearing Order (Pre-hearing Order) that required each party to file a pre-hearing exchange and supporting documents.  Pre‑hearing Order ¶ 4.  CMS subsequently filed a Pre-hearing Brief (CMS Br.), along with 15 exhibits (CMS Exs. 1-15).

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Petitioner did not file his pre-hearing exchange as required by my Pre-hearing Order.  I issued an Order to Show Cause (OSC) on July 31, 2018 and gave him until August 15, 2018 to file his pre-hearing exchange and explain his failure to timely file.  OSC at 1.  On August 16, 2018, Petitioner filed a response to the OSC (OSC Resp.) explaining he did not reply on time because filings were sent to a P.O. Box and he failed to sign for them before they were returned.  OSC Resp. at 1.  Petitioner also submitted a document entitled Pre-hearing Brief (P. Br.) in which he explained he had sought re‑enrollment in the Medicare program because he had been working for a group practice but decided to return to private practice in April 2017.  P. Br. at 1.  Petitioner requested that his enrollment begin “retroactive to my previous date” which I take to mean April 2017, when he returned to private practice.  Id.

For the reasons proffered by Petitioner, I find good cause to allow him to file out of time.  I have considered both Petitioner’s response to the OSC and his pre-hearing brief in rendering this decision.

II. CMS’s Motion to Consolidate

On May 30, 2018, CMS moved to consolidate this case with another case docketed in the Civil Remedies Division as C-18-899 before Administrative Law Judge Leslie Weyn.  That matter concerned Bradshaw Mallard, P.A., an employee of Petitioner who also challenged an effective date determination by CMS that involved the same taxpayer identification number (TIN), though derived from a different PTAN.  Motion to Consolidate at 1-2.

After CMS filed its motion, however, Petitioner Mallard settled his dispute with CMS and withdrew his appeal before Judge Weyn on June 22, 2018.  DAB E-file Dkt. No. C-18-889, Doc. No. 7.  On July 10, 2018, I denied CMS’s motion to consolidate.

III. Decision on the Written Record and Admission of Exhibits

Petitioner did not object to the exhibits offered by CMS.  I admit CMS Exs. 1-15 into evidence.  Neither party offered written direct testimony of any witness as part of its pre‑hearing exchange, meaning an in-person hearing is not necessary in this matter.  Pre‑Hearing Order ¶¶ 8-10; Civ. Remedies Div. P. §§ 16(b), 19(b).  Therefore, I will decide this case on the record, based on the parties’ written submissions and arguments.  Civ. Remedies Div. P. § 19(d).

IV. Issue

The issue in this case is whether WPS, acting on behalf of CMS, properly established January 22, 2018, as the effective date for Petitioner’s Medicare billing privileges.

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V. Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2).

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

A.  Applicable Law

The Social Security Act authorizes the Secretary of Health and Human Services to promulgate regulations governing the enrollment process for providers and suppliers.  Act §§ 1102, 1866(j) (42 U.S.C. §§ 1302, 1395cc(j)).  A “supplier” like Petitioner is “a physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services” under the Medicare provisions of the Act.  Act § 1861(d) (42 U.S.C. § 1395x(d)); see also Act § 1861(u) (42 U.S.C. § 1395x(u)).

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 define “Enrollment” as “the process that Medicare uses to establish eligibility to submit claims for Medicare‑covered items and services.”  42 C.F.R. § 424.502.  A supplier seeking the privilege of billing the Medicare program must “submit enrollment information on the applicable enrollment application.  Once the provider or supplier successfully completes the enrollment process . . . CMS enrolls the provider or supplier into the Medicare program.”  42 C.F.R. § 424.510(a)(1).

The effective date for Medicare billing privileges for physicians, non-physician practitioners, and physician or non-physician practitioner organizations is the later of the “date of filing” or the date the supplier first began furnishing services at a new practice location.  42 C.F.R. § 424.520(d).  Relevant here, the regulations also afford CMS and its administrative contractors the ability to allow suppliers to bill the Medicare program for services occurring up to 30 days before the effective date of enrollment, if certain circumstances apply.  42 C.F.R § 424.521(a)(1).

CMS may reject an incomplete enrollment application if the prospective supplier “fails to furnish complete information on the . . . supplier enrollment application within 30 calendar days from the date of the contractor request for the missing information.”  42 C.F.R. § 424.525(a)(1).  However, so long as the contractor continues to process that application to approval, the effective date of enrollment will be the date of its filing.  Karthik Ramaswamy, M.D., DAB No. 2563 at 5 (2014) (en banc), aff’d sub nom. Ramaswamy v. Burwell, 83 F. Supp. 3d 846 (E.D. Mo. 2015).

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B.  Analysis

1. The effective date of Petitioner’s Medicare enrollment application3 is December 26, 2017, as that is the date WPS received that application, which it subsequently processed to approval.

There is no dispute that Petitioner submitted an application for enrollment through CMS’s PECOS system that was received by CMS’s contractor on December 26, 2017.  CMS Ex. 1 at 1; CMS Ex. 2 at 1.  Nor is there any dispute that WPS ultimately processed this application to completion.  Nevertheless, WPS stated in its reconsidered determination that it received Petitioner’s reassignment application on January 22, 2018.  CMS Ex. 13 at 2.

CMS has adopted WPS’s position, arguing Petitioner’s application was not actually “received” until he signed his application, which by CMS’s reckoning did not take place until January 22, 2018, the date by which Petitioner submitted electronic signatures for both his individual and group applications.  CMS Br. at 6-7.  CMS relies on language in the preamble to 42 C.F.R. § 424.520, which defines the date of filing to be the date a CMS contractor receives a signed application it is able to process to approval.  Id. at 7, citing 73 Fed. Reg. 69,726, 69,766-69,767 (Nov. 19, 2008).  CMS also contends the Departmental Appeals Board (Board) has adopted this position.  Id. at 7, citing Lindsay Zamis, M.D., A Prof’l Corp., DAB No. 2802 at 2, n.5 (2017) (citing Alexander C. Gatzimos, M.D., JD, LLC, DAB No. 2730 at 4 (2016)).

I have reviewed these decisions, however, and in neither case does the Board squarely confront the issue before me here.  In Zamis, the Board cited the prefatory language relied upon by CMS to conclude the date of filing of an enrollment application should mean the date of its receipt by CMS or its contractors.  Zamis, DAB No. 2802 at 3 n.5 (citing 73 Fed. Reg. at 69,766-69,767).  The Zamis decision relies upon Gatzimos for that same proposition.  Id. (citing Gatzimos, DAB No. 2730 at 4).

Gatzimos similarly does not address the issue before me here; as in Zamis,the Board relied upon the same prefatory language to again explain why the date of filing of an enrollment application should be the date of receipt by CMS.  Gatzimos, DAB No. 2730

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at 4.  In neither case did the Board take a position as to whether a signature was required to render an application “complete.”4

In fact, in Gatzimos the Board extensively discussed the intent of the drafters of 42 C.F.R. § 424.520 after the regulation was revised in 2014 to include ambulance suppliers.  The Board observed the drafters changed no language in that regulation aside from the insertion of the phrase “ambulance suppliers,” and critical here, memorialized their response to a new round of comments following the revision, which again concerned the effective date of enrollment applications.  Id. at 10-12.  As the Board observed, CMS clearly reinforced to public commenters that it intended the effective date of an enrollment application to be the date of its submission (meaning receipt), regardless of whether that application required subsequent development:

Comment:  Several commenters requested CMS to clarify that the “date of filing” of a CMS-855 application is the date on which the contractor initially received the application, not the date on which the contractor deemed the application “complete.”

Response:  The “date of filing” is the date on which the provider or supplier submitted its CMS-855 application via mail or Internet-based PECOS.

Comment:  Several commenters stated that a more definitive distinction must be made as to what is meant by the date of an application that is subsequently approved.  One commenter stated that it is not uncommon for contractors to return applications with a request for supporting documentation.  Another commenter requested an explicit statement that the date the application is entered into PECOS or a paper CMS-855B is mailed is the effective date of billing privileges, assuming the application is eventually accepted; this would make it clear that a request for additional documentation is part of the original process and does not begin an entirely new cycle.

Response:  We indicated earlier that the effective date of billing privileges under § 424.520(d) will be the later of:  (1) The “date of filing” of an enrollment application that is

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subsequently approved; or (2) the date the supplier began furnishing services at a practice location.  The “date of filing” is considered to be the date on which the supplier submitted its CMS-855 application via mail or Internet-based PECOS.  The term “subsequently approved” includes application submissions for which the contractor requested additional information from the supplier (or otherwise undertook developmental activities with respect to the application) and the application was ultimately approved.

Gatzimos, DAB No. 2730 at 11-12, citing 79 Fed. Reg. 72,500, 72,521 (Dec. 5, 2014) (italics in original, bolding added).

In short, the drafters of 42 C.F.R. § 424.520 made it clear that an application would be considered submitted when received by the contractor, not “the date on which the contractor deemed the application ‘complete.’”  79 Fed. Reg. at 72,521. 

The drafters’ position aligns with the reasoning of the Board, which took a similar position in 2010.  In Tri-Valley Family Med., Inc., the Board acknowledged the prefatory language that accompanied 42 C.F.R. § 424.520(d) first raised the possibility that “lack of a signature on an application might affect the timing of when a physician could get paid for covered services.”  DAB No. 2358 at 7 (2010) (citing 73 Fed. Reg. at 69,769).  Nevertheless, the Board concluded that “the regulations in effect at the time of the November 2008 application created a process in which a contractor was able to subsequently approve an application even if it was not signed and fully complete when it was first submitted.”5   Id. at 8 (italics in original).

It is true that the Board has since distanced itself from Tri-Valley, but not from the analysis quoted above.  Instead, the Board has rejected efforts by suppliers to obtain review of prior rejected applications, stating it would “not determine de novo that an application could have been processed to approval in the face of the contractor’s actual determination to deny the application because it was not approvable.”  Ramaswamy, DAB No. 2563 at 9.  The Board confirmed in Ramaswamy that “while the contractor may require and request additional information to complete the application, the effective date

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will relate back to the date of filing so long as that application continues to be processed to a decision on whether to approve it.”6   Id. at 5 (italics in original).

Finally, I note that recent decisions from other judges in the Civil Remedies Division have addressed this same issue and reached the same outcome.  While they are not binding, I believe both decisions to be persuasive in their reasoning and discussion of the applicable precedents.  See CheunJu Chen, M.D., DAB CR5465 (2019); Thompson Eye Clinic PA, DAB CR5517 (2020).

In sum, CMS has cited no authority for its naked assertion that an application is not truly submitted until the supplier submits a signature.  The regulations clearly require the effective date of a supplier’s enrollment application to be the date the contractor receives an application it ultimately processes to completion.  42 C.F.R. § 424.520(d).  As there is no evidence of a later application that was subsequently processed to completion by WPS, the plain language of the regulation requires me to find Petitioner’s effective date to be the date of receipt of his application that WPS approved.  Id. 

Accordingly, I find WPS did not determine the correct effective date for Petitioner’s Medicare enrollment, and modify the effective date of Petitioner’s Medicare enrollment to be December 26, 2017.  Because CMS has already granted him the maximum 30-day period of retrospective billing permitted under the regulations, Petitioner will receive retrospective billing privileges beginning November 26, 2017.  42 C.F.R. § 424.521(a)(1).

2. I have no authority to consider Petitioner’s equitable arguments.

Petitioner argues that his effective date should be “retroactive to [his] previous date[,] given [his] ongoing participation in the Medicare program at this location since 2005.”  P. Br.  I construe this as a request to begin his billing privileges in April 2017, when he returned to individual practice.  Id.

Petitioner’s request to be afforded billing privileges months before he filed an enrollment application is essentially a request for equitable relief.  But my jurisdiction is limited to review of CMS’s determination of the effective date of Petitioner’s enrollment application under 42 C.F.R. § 424.520(d).  I am unable to grant Petitioner equitable relief.  See, e.g., US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the Board is

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authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”); Pepper Hill Nursing & Rehab. Ctr., LLC, DAB No. 2395 at 11 (2011) (holding the ALJ and Board were not authorized to provide equitable relief by reimbursing or enrolling a supplier who did not meet statutory or regulatory requirements).

VII. Conclusion

For the reasons explained herein, Petitioner’s effective date of enrollment is modified to December 26, 2017, with retrospective billing permitted from November 26, 2017.

1. WPS erroneously refers to December 20, 2017 as Petitioner’s effective date.  CMS Exs. 9-10.  In fact, the actual effective date was January 19, 2018, with 30 days of retrospective billing permitted from December 20, 2017.  See 42 C.F.R. §§ 424.520(d), 424.521(a)(1).
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2. WPS again erroneously refers to December 23, 2017 as Petitioner’s effective date in its reconsidered determination.  CMS Ex. 13 at 2.  The actual effective date was January 22, 2018, with 30 days of retrospective billing permitted from December 23, 2017.
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3. I refer to Petitioner’s group practice application and reassignment application collectively as his “enrollment application” since they were both received by CMS on December 26, 2017 and later processed to approval.
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4. It is somewhat concerning that CMS has cited these decisions for propositions they do not contain.  Such mistakes serve to obstruct the issues I must decide, and CMS would do well to more carefully identify legal issues I must resolve and more thoroughly discuss what it believes to be applicable precedent.
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5. Acknowledging the regulation had been recently amended in 2008, the Board maintained that “even after the amended regulations became effective, an application need not be fully complete at the time of submission to be processed to approval.”  Tri-Valley, DAB No. 2358 at 8 n.6 (italics in original).
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6. The Board also observed that “unique factual circumstances” existed in Tri-Valley that precluded its general application.  Ramaswamy, DAB No. 2563 at 9.  In Tri-Valley the facts suggest the contractor rejected the application at issue without giving the supplier an opportunity to provide the missing signature.  Id.  Absent a complete failure by a contractor to develop an application, Tri-Valley would likely be inapplicable.  Here, of course, WPS did provide Petitioner an opportunity to supplement his application, but without legal basis selected an effective date that was not the date of receipt of Petitioner’s application.
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