Javel Jackson PsyD, DAB CR5644 (2020)

AMENDED DECISION1

Palmetto GBA (Palmetto), a Medicare administrative contractor for the Centers for Medicare & Medicaid Services (CMS), approved the enrollment application of Javel Jackson, PsyD (Petitioner), effective January 2, 2018, with retroactive billing privileges effective December 3, 2017.  Petitioner requested a hearing before an administrative law judge because she seeks an earlier effective date.  Because Palmetto approved Petitioner’s enrollment application that was received on January 2, 2018, it correctly determined Petitioner’s effective date of enrollment to be January 2, 2018.  Palmetto exercised its discretion to grant Petitioner retroactive billing privileges beginning on December 3, 2017.  Therefore, I affirm the effective date determination.

I.    Background

Petitioner is a clinical psychologist licensed to practice in Georgia.  CMS Exhibit (Ex.) 2 at 7, 10.  Petitioner was originally enrolled as a Medicare supplier in December 2000; however, her enrollment was deactivated due to infrequent billing.  CMS Ex. 5 at 1; see also CMS Ex. 4 at 1.  In 2017, Petitioner began treating a client who was a Medicare

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beneficiary.  Docket (Dkt.) Entry 1 in in the Departmental Appeals Board (DAB) Electronic Filing System (E-File) (Request for Hearing (RFH)).  She therefore applied to reactivate her Medicare enrollment.  Id.

Petitioner submitted a CMS-855B application form to Cahaba GBA (Cahaba), another Medicare administrative contractor,2 to reactivate her Medicare enrollment and billing privileges.  CMS Ex. 4 at 3.  Cahaba returned Petitioner’s application and advised Petitioner to resubmit her application using Form CMS-855I.  Dkt. Entry 6 in DAB E‑File.  On January 2, 2018, Cahaba received the proper form from Petitioner.  CMS Ex. 2 at 1.3  By letter dated July 26, 2018, Palmetto approved Petitioner’s enrollment application, effective January 2, 2018, with retroactive billing privileges effective December 3, 2017.4  CMS Ex. 3 at 1.

Petitioner requested reconsideration, asking that her effective date of enrollment relate back to her prior effective date, December 4, 2000.  RFH; CMS Ex. 5 at 3.  Alternatively, Petitioner argued that her Medicare enrollment should be either July 27, 2017, the date she started seeing her Medicare client, or August 28, 2017, the date she submitted Form CMS-855B.  RFH; CMS Ex. 4 at 1.  In response, Palmetto issued an unfavorable reconsidered determination that reaffirmed the January 2, 2018 effective date, with retroactive billing privileges effective December 3, 2017.  CMS Ex. 1 at 2.

Petitioner timely requested a hearing before an administrative law judge to challenge Palmetto’s unfavorable reconsidered determination.  RFH.  I was designated to hear and decide this case.  On December 6, 2018, I issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) that required the parties to file a pre-hearing exchange consisting of a brief and any supporting documents, including any Motion to Dismiss or Motion for Summary Judgment.  Pre-Hearing Order ¶ 4.  CMS filed its Pre-Hearing Brief

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(CMS Br.), which incorporated a motion for summary judgment, and five proposed exhibits (CMS Exs. 1-5).  Petitioner filed a response (P. Resp.) and two supporting documents.  Petitioner did not number her supporting documents as exhibits.  I therefore refer to them by their docket entry numbers as they appear in DAB E-File (Dkt. Entries 6, 7).

Neither party objected to the exhibits proposed by the opposing party.  Therefore, in the absence of objection, I admit CMS Exs. 1-5 and Dkt. Entries 6 and 7 into the record.  Neither CMS nor Petitioner offered the written direct testimony of any witness as part of the pre-hearing exchange.  As I informed the parties in my Pre-Hearing Order, “[a]n in‑person hearing to cross-examine witnesses will be necessary only if a party files admissible, written direct testimony, and the opposing asks to cross-examine.”  Pre‑Hearing Order ¶ 10.  Therefore, an in-person hearing is not necessary, and I decide this case based on the parties’ written submissions, without regard to whether the standards for summary judgment are satisfied.

II.    Issue

The issue in this case is whether Palmetto, acting on behalf of CMS, properly established January 2, 2018, as the effective date of Petitioner’s enrollment in the Medicare program.

III.    Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2); see also Social Security Act § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

IV.    Discussion

A.    Applicable Legal Authority

The Social Security Act (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” 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 “Enroll/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 provider or supplier seeking billing privileges under the Medicare program must “submit enrollment information on the applicable enrollment application.  Once the provider or supplier successfully completes

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the enrollment process . . . CMS enrolls the provider or supplier into the Medicare program.”  42 C.F.R. § 424.510(a).  CMS then establishes an effective date for billing privileges consistent with 42 C.F.R. § 424.520 and may permit retrospective billing as provided in 42 C.F.R. § 424.521.  CMS sets the effective date of enrollment in accordance with the following:

The effective date for billing privileges for physicians, non-physician practitioners, physician and non-physician practitioner organizations, and ambulance suppliers is the later of—

(1)  The date of filling a Medicare enrollment application that was subsequently approved by a Medicare contractor; or
(2)  The date that the supplier first began furnishing services at a new practice location.

42 C.F.R. § 424.520(d).

B.    Findings of Fact and Conclusions of Law5

1.  On January 2, 2018, the contractor received Petitioner’s application to enroll in Medicare; the application was subsequently approved.

2.  Petitioner’s effective date of Medicare enrollment is January 2, 2018, with retrospective billing privileges as of December 3, 2017.

The effective date of Medicare enrollment and 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).  The “date of filing” is the date that the Medicare contractor “receives” a signed enrollment application that the Medicare contractor is able to process to approval.  73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008); Donald Dolce, M.D., DAB No. 2685 at 8 (2016).  When a contractor approves an enrollment application, it may allow retrospective billing for up to 30 days prior to the effective date established under 42 C.F.R. § 424.520 for a supplier who meets all program requirements and is providing Medicare-covered services.  42 C.F.R. § 424.521(a)(1).

Cahaba, CMS’s contractor at the time, received an enrollment application from Petitioner on January 2, 2018.  CMS Ex. 3; see also CMS Br. 1-2.  After taking over from Cahaba, Palmetto subsequently approved that application and granted her retrospective billing

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privileges beginning December 3, 2017.  CMS Ex. 1 at 2.  Accordingly, as required by regulation, the effective date of Petitioner’s Medicare enrollment is January 2, 2018.

In support of her position that I should grant her an earlier effective date of enrollment, Petitioner argues that she should be reimbursed for the six sessions she provided to her Medicare client because the application forms were unclear.  Dkt. Entry 7 in DAB E‑File.  However, as I explain in the following section of this decision, Petitioner’s arguments essentially rely on equitable principles that are inapplicable here.

3.  Petitioner’s equitable arguments are not a basis to grant her an earlier effective date of Medicare enrollment.

Petitioner argues that I should grant her an earlier effective date because she acted in good faith when she accepted a new client, believing that the original effective date of her Medicare enrollment (in December 2000) would be reinstated once her application was processed.  P. Resp. at 1.  She argues her assumption about how CMS would calculate her effective date was based on CMS’s practice in the past.  Id.  She asserts she would have referred her Medicare client to another therapist had she realized she would not be reimbursed for the services she provided.  Id.  These contentions suggest that Petitioner may be arguing that she is entitled to an earlier effective date based on the doctrine of equitable estoppel ‒ i.e. she relied to her detriment on false or misleading information provided by CMS or its contractor.

However, appellate panels of the DAB have recognized that equitable estoppel will not lie against a government entity absent some type of affirmative misconduct.  See, e.g., Richard Weinberger, M.D. & Barbara Vizy, M.D., DAB No. 2823 at 19 (2017) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 419-21 (1990)).  In the present case, it does not appear that any CMS or contractor personnel told Petitioner that her Medicare re-enrollment would relate back to her original enrollment date.  As such, there is no basis to impute even negligence ‒ and certainly not affirmative misconduct ‒ to contractor personnel.  Therefore, I find no basis to overturn Palmetto’s effective date determination based on equitable estoppel.

Petitioner maintains that she was “not aware of any changes to [CMS’s] practices or policies regarding assignment of an effective date.”  P. Resp. at 1.  However, suppliers such as Petitioner are “presumed to have constructive notice of the statutes and regulations that govern their participation as a matter of law.”  Pepper Hill Nursing & Rehab. Ctr., LLC, DAB No. 2395 at 8 (2011).  See also Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 63, 64 (1984) (participant in the Medicare program had “duty to familiarize itself with the legal requirements” for cost reimbursement).

Finally, to the extent Petitioner’s argument is that I should grant her an earlier effective date based on principles of fairness, such general appeals to equity are not a basis to

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overturn Palmetto’s determination in this case.  I may not set aside the lawful exercise of discretion by CMS or its contractor based on principles of equity.  See US Ultrasound, DAB. No. 2302 at 8 (2010); Cent. Kan. Cancer Inst., DAB No. 2749 at 10 (2016).

4.    I do not have jurisdiction to consider Petitioner’s request for Medicare reimbursement.

Petitioner’s hearing request and subsequent submissions make clear that she is primarily concerned that she receive Medicare reimbursement for services she provided after she first attempted to re-enroll but before her re-enrollment application was ultimately approved.  However, the only issue I may hear and decide in this case is whether Palmetto correctly established Petitioner’s effective date of enrollment.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2).  By contrast, if a Medicare beneficiary, or a provider or supplier on the beneficiary’s behalf, submits a claim to Medicare that is denied, the regulations provide for an appeal to an administrative law judge of the Office of Medicare Hearings and Appeals.  See 42 C.F.R. § 405.1002.  The process for appealing denied claims is completely separate and independent of the process for challenging an effective date of enrollment.  I have jurisdiction to review a supplier’s effective date of enrollment.  42 C.F.R. § 498.3(b)(15).  I do not have jurisdiction to review the denial of individual Medicare claims or to direct a contractor to reimburse Petitioner for the services she provided.

V.    Conclusion

For the reasons explained above, I affirm Palmetto’s determination that the effective date for Petitioner’s enrollment in Medicare is January 2, 2018, with retrospective billing privileges effective December 3, 2017.  I deny CMS’s motion for summary judgment as moot.

1. The decision was amended to correct the Decision No.
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2. CMS explains that Cahaba was the responsible Medicare contractor when Petitioner filed her enrollment application, but Palmetto took over as the responsible contractor while the application was pending.  CMS Br. at 2 n.1.
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3. For reasons that are unexplained in the record, Petitioner’s enrollment application was date-stamped as received by National Government Services, a different Medicare administrative contractor.  CMS Ex. 2 at 1.  In any event, the identity of the Medicare contractor that received the application is not material to my decision.
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4. Both the initial and the reconsidered determinations incorrectly identify December 3, 2017, as the effective date of enrollment.  CMS Ex. 1; CMS Ex. 3.  December 3, 2017, is the effective date of retroactive billing privileges as allowed under 42 C.F.R. § 424.521(a).  Pursuant to the regulations, the effective date of enrollment is the date the contractor receives an application that is subsequently processed to approval, which in this case is January 2, 2018. 42 C.F.R. § 424.520(d).
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5. My findings of fact and conclusions of law appear as numbered headings in bold italic type.
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