Melissa Wriglesworth, PA, DAB CR5702 (2020)

DECISION

The effective date of the Medicare enrollment of Petitioner, Melissa Wriglesworth, PA, is April 30, 2019, with retrospective billing privileges authorized beginning March 31, 2019.

I.  Background and Procedural History

Petitioner is a physician assistant.  See Centers for Medicare and Medicaid Services (CMS) Ex. 1 at 6.  On December 17, 2018, Noridian Healthcare Solutions (Noridian), a Medicare administrative contractor, received, inter alia, Petitioner's Form CMS-855I application to enroll in the Medicare program and reassign her benefits to Housecall Doctors Medical Group, Inc.  CMS Ex. 1.  Petitioner designated "A.S.,"1 an employee of Housecall Doctors Medical Group, Inc., as "the person [she] would like for [Noridian] to

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contact regarding [her] application."  CMS Ex. 1 at 19.  Petitioner provided A.S.'s contact information, to include her email address.  CMS Ex. 1 at 19.

On January 22, 2019, Noridian sent A.S. an email message requesting additional development of section 2 of the enrollment application and a new certification statement.  CMS Ex. 2 at 1; see CMS Ex. 9 at 3.  Noridian cautioned that it "may reject [Petitioner's] application(s) if [she does] not furnish complete information pursuant to 42 [C.F.R. § ] 424.525 within thirty calendar days of this letter."  CMS Ex. 2 at 1; see 42 C.F.R. § 424.525 ("CMS may reject a provider's or supplier's enrollment application . . . [if] [t]he prospective provider or supplier fails to furnish all required supporting documentation within 30 calendar days from the date of the contractor request for the missing information.").  After Noridian did not receive the requested development, it informed Petitioner, in a letter dated April 29, 2019, that it had rejected her December 17, 2018 application.2   CMS Ex. 4 at 1.

The next day, on April 30, 2019, Noridian received a new enrollment application from Petitioner.  CMS Ex. 5 at 1.  On August 25, 2019, Noridian approved Petitioner's application, and assigned, inter alia, an effective date of March 31, 2019, for her two Provider Transaction Access Numbers (PTANs) associated with Housecall Doctors Medical Group, Inc.3   CMS Ex. 7 at 1-2.  At that time, Noridian updated Petitioner's

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enrollment record to reflect her designation of a new contact person.  CMS Exs. 6 at 2; 7 at 2.

On October 15, 2019, Petitioner requested reconsideration of the effective date assigned for her Medicare enrollment.  CMS Ex. 8.  Petitioner explained that Noridian had sent the January 2019 development request via an email message to an employee who was no longer employed by the practice, and therefore, she was unaware of the development request.  Petitioner also reported that personnel from her office made several "status check" telephone inquiries regarding her application and that Noridian did not inform those personnel of a pending development request.  CMS Ex. 8 at 3-4.

On January 13, 2020, Noridian issued a reconsidered determination in which it determined that Petitioner "was issued the earliest retrospective billing date based off the processed application that was received by Noridian on April 30, 2019."  CMS Ex. 9 at 4.  Noridian explained that "there was no response to the required corrections that were emailed to [A.S.]," and that because A.S. "was the contact person listed on the applications[,] no further forms of communication were required to be sent."  CMS Ex. 9 at 4.  Noridian acknowledged Petitioner's claim that telephone inquiries on her behalf revealed that her application "was still in process and nothing further was required," but explained that A.S. had not provided the required corrections to the application.  CMS Ex. 9 at 3-4.

Petitioner submitted a request for an administrative law judge (ALJ) hearing on March 10, 2020.4   Thereafter, the Civil Remedies Division issued my standing pre-hearing order (Pre-Hearing Order) that directed the parties to file their respective pre-hearing exchanges.  CMS filed a pre-hearing brief and motion for summary judgment, along with nine proposed exhibits (CMS Exs. 1-9).  Petitioner filed a response (P. Br.) that I construe as a brief.

Neither party has submitted written direct testimony, as addressed in sections 11 through 13 of the Pre-Hearing Order.  A hearing for the purpose of cross-examination is therefore

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unnecessary.  I consider the record in this case to be closed, and the matter is ready for a decision on the merits.5

II.  Issue

Whether the effective date of Petitioner's Medicare enrollment is April 30, 2019, with retrospective billing privileges authorized beginning March 31, 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); 42 U.S.C. § 1395cc(j)(8).

IV.  Findings of Fact, Conclusions of Law, and Analysis6

Pursuant to 42 C.F.R. § 424.520(d), the effective date of Petitioner's Medicare enrollment is April 30, 2019, which is the date of receipt of the Medicare enrollment application that Noridian was able to process to approval, and retrospective billing privileges are authorized beginning March 31, 2019, pursuant to 42 C.F.R. § 424.521(a)(1).

As a physician assistant, Petitioner is a "supplier" for purposes of the Medicare program.  See CMS Ex. 1 at 6; 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 who seeks 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 for suppliers).  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

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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.'"  Gatzimos, DAB No. 2730 at 2-3, citing 42 C.F.R. § 424.520(d) (addressing the effective date of enrollment, for inter alia, physicians and non-physician practitioners); see Gaurav Lakhanpal, MD, DAB No. 2951 at 6 (2019) ("the effective date of . . . reassignment of billing privileges is . . . the date that [the contractor] received [the] reassignment application that was subsequently approved.").

The Departmental Appeals Board 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).  Petitioner's arguments focus on the rejection of her December 2018 enrollment application.  Specifically, Petitioner argues that Noridian did not reasonably notify her of the January 2019 development request when it sent "a single email to a person who no longer worked with [her] organization."  P. Br. at 1.  However, Petitioner had designated A.S. as "the person [she] would like for [Noridian] to contact regarding [her] application," and Petitioner provided A.S.'s email address to Noridian.  CMS Ex. 1 at 19; see CMS Pub. 100-8, Medicare Program Integrity Manual (Rev. 765, effective January 1, 2018), Ch. 15, § 15.5.13 ("[T]he contractor has the discretion to use the contact persons listed in section 13 of the Form CMS-855 . . . for all written and oral communications (e.g., mail, email, telephone) related to the [supplier's] Medicare enrollment.").  Petitioner does not allege that, after the termination of A.S.'s employment with her practice, she notified Noridian of a new contact person for her December 2018 enrollment application; rather, the record demonstrates that Petitioner first informed Noridian that A.S. was no longer her contact person when she filed a subsequent enrollment application on April 30, 2019.  CMS Ex. 5 at 4.  In fact, Petitioner concedes that "[i]f [A.S.] had continued with our group we may have been made aware by the EMAIL and been allowed the opportunity to respond to the requests."  CMS Ex. 8 at 4.  And to the extent that Petitioner complains that Noridian did not inform her of a pending development request when personnel from her office requested "status checks" regarding her application, the simple fact is that Noridian sent a development request to the contact person Petitioner listed on her enrollment application and it did not receive a response to its written request.  See CMS Ex. 2 at 1.  Finally, and most significantly, Petitioner cannot challenge the rejection of her application in this forum; even assuming, for the sake of this discussion, that Noridian somehow did not provide "reasonable notification" of the development request, as she alleges in her brief, the pertinent regulation does not provide for an appeal of a rejected application.  Wishon Radiological Medical Group, Inc., DAB No. 2941 at 6 (2019) (stating that 42 C.F.R. § 424.525(d) "expressly provides that the rejection of an enrollment application is not appealable," and that section 424.525(d) "would be rendered null" if a petitioner could challenge a

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previously rejected application through an appeal of the effective date stemming from a subsequent application).

Petitioner does not dispute that she first submitted the application that Noridian was ultimately able to process to approval on April 30, 2019.  Although Petitioner requests a November 17, 2018 effective date for her enrollment, this request is premised on a belief that she can appeal a rejected application on the basis of purported "lapses . . . in reasonable standards of communication" resulting from Noridian sending a development request to the person she designated to handle such requests on her behalf.  P. Br. at 1-2; see CMS Exs. 1 at 19; 2 at 1.  However, section 424.525(d) does not allow Petitioner to challenge the rejection of her December 2018 application, and even if Petitioner could do so, she has not shown any error on the part of Noridian when it sent a development request to the person Petitioner asked Noridian "to contact regarding [her] application."  CMS Ex. 1 at 19.  Petitioner has not contended that she submitted an application prior to April 30, 2019 that Noridian was able to process to approval.  Therefore, the earliest possible effective date for Petitioner's enrollment is April 30, 2019, pursuant to 42 C.F.R. § 424.520(d), the date Noridian received the enrollment application that could be processed to approval.  Billing privileges are authorized beginning up to 30 days earlier pursuant to 42 C.F.R. § 424.521(a)(1), and therefore, Petitioner's billing privileges are effective on the earliest possible date allowed by law, March 31, 2019.  Accordingly, I conclude that, pursuant to 42 C.F.R. § 424.520(d), the effective date of Petitioner's enrollment is April 30, 2019, with retrospective billing privileges authorized beginning March 31, 2019.  See Lakhanpal, DAB No. 2951 at 6.

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 her 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 . . . .").

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V.  Conclusion

For the foregoing reasons, I uphold the April 30, 2019 effective date of Petitioner's enrollment, with retrospective billing privileges authorized beginning March 31, 2019.

1. I have redacted A.S.'s name to protect her privacy.  I note that the enrollment application explained that Noridian would directly contact Petitioner regarding her application if she did not list a contact person.  CMS Ex. 1 at 19.
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2. Noridian's April 29, 2019 letter is addressed to A.S.  CMS Ex. 4 at 1.  Noridian later reported that it had sent this letter via email (CMS Ex. 9 at 2), whereas Petitioner claimed that she received the same letter "by US mail" on April 29, 2019.  CMS Ex. 8 at 3.  The evidence supports that Petitioner received this letter via email, as shown by Petitioner's acknowledgment that she received the letter on the same day as its issuance on April 29, 2019, and her submission of a new enrollment application the following day, April 30, 2019.  CMS Exs. 5 at 1; 7 at 1-2; 8 at 3.  If Petitioner had received the letter by mail on April 29, 2019, as she claims, then the U.S. Postal Service would have, quite remarkably, effectuated same-day transit and delivery of a letter mailed from Fargo, ND, to Laguna Hills, CA.  See CMS Ex. 4 at 1.  As such, it appears that Petitioner or her practice maintained access to A.S.'s employee email account after A.S. left employment with the practice.  Regardless of whether Petitioner received the January 22, 2019 email message requesting development, she cannot challenge the rejection of an enrollment application in this forum, as will be discussed below.  See 42 C.F.R. § 424.525(d).
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3. 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).  Noridian used imprecise language when it stated that it had assigned a March 31, 2019 effective date for Petitioner's enrollment.  In actuality, Noridian assigned an April 30, 2019 effective date for 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 March 31, 2019, pursuant to 42 C.F.R. § 424.521(a)(1).
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4. Petitioner limited her request for hearing to the effective date of her enrollment and billing privileges associated with Housecall Doctors Medical Group, Inc.  Therefore, I do not address the effective date of Petitioner's enrollment and billing privileges associated with MD Solutions Medical Corp.  See CMS Ex. 7 at 2.
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5. Because a hearing is unnecessary, I need not address whether summary judgment is appropriate.
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6. Findings of fact and conclusions of law are in bold and italics.
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