Kathleen Koenig PT and Redhead Rehab PLLC, DAB CR5714 (2020)

DECISION

I affirm the reconsidered determination of Noridian Healthcare Solutions (Noridian), a Centers for Medicare & Medicaid Services' (CMS) contractor, that the effective date for Medicare enrollment and billing privileges for Redhead Rehab PLLC (Redhead Rehab) is November 1, 2019, with a retrospective billing period commencing on October 2, 2019.

I.  Procedural History

On January 30, 2020, Noridian issued an initial determination that Redhead Rehab's effective date for Medicare billing privileges was October 2, 2019.  CMS Ex. 12.  In a May 21, 2020 reconsidered determination, Noridian affirmed the effective date assigned in the initial determination.  CMS Ex. 14.  The reconsidered determination indicated that the effective date for enrollment and billing privileges was November 1, 2019 (i.e., the

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date that Noridian received the enrollment application that it would later approve), and that the earliest date for retrospective billing privileges was 30 days before that (i.e., October 2, 2019).

Petitioners timely requested a hearing before an administrative law judge.  On June 19, 2020, the Civil Remedies Division (CRD) issued an acknowledgment of the hearing request and my Standing Prehearing Order.  In response, CMS filed a motion for summary judgment/prehearing brief and 14 exhibits (CMS Exs. 1-14).  Petitioners did not file a prehearing exchange, but did so after receiving an Order to Show Cause from me.  Petitioners' exchange consisted of a motion for summary judgment/prehearing brief (P. Br.) and five exhibits (P. Exs. 1-5).  I accept Petitioners' exchange as if it had been timely filed.  CMS filed notice that it would not file a reply brief.

II.  Decision on the Written Record

I admit all of the proposed exhibits into the record without objection.  See Standing Prehearing Order ¶ 10; CRD Procedures § 14(e).

The Standing Prehearing Order advised the parties to submit written direct testimony for each witness and that an in-person hearing would only be held if a party requested to cross-examine a witness.  Standing Prehearing Order ¶¶ 10-13; CRD Procedures §§ 16(b), 19(b).  Neither party has offered any written direct testimony.  Therefore, I issue this decision based on the written record.  Standing Prehearing Order ¶ 14; CRD Procedures § 19(d).

III.  Issue

Whether CMS had a legitimate basis to assign November 1, 2019, as the effective date for Redhead Rehab's Medicare enrollment and billing privileges.

IV.  Jurisdiction

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

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

The record in this case is unclear and lacks documents to show exactly what happened in regard to Petitioners' various attempts to obtain Medicare enrollment and the reassignment of Medicare benefits.  However, Petitioners only have a right to administrative law judge review of the effective date of enrollment based on enrollment applications that CMS ultimately approves.  Petitioners do not have the right to administrative law judge review of Noridian's decision to reject its other enrollment

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applications.  Therefore, with my limited jurisdiction in mind, I conclude that the record provides sufficient support for the effective date Noridian assigned in this case.

1. Noridian received a CMS-855B Enrollment Application from Petitioners on November 1, 2019, and Noridian subsequently approved that application and enrolled Redhead Rehab in the Medicare program with an effective date of October 2, 2019.

Kathleen Koenig, PT is the sole owner of Redhead Rehab.  CMS Ex. 13 at 24, 28.  Redhead Rehab was incorporated on December 10, 2018, in Washington State and is a physical/occupational therapy group private practice.  CMS Ex. 1 at 16.  Starting in June 2019, Petitioners apparently wanted to change Ms. Koenig's practice location from her previous employer to that of Redhead Rehab.  P. Br. at 2.

The record contains portions of a CMS-855B Medicare enrollment application (Enrollment Application #1).  Enrollment Application #1 was submitted on an unknown date for the purpose of updating the practice location of Redhead Rehab.  Enrollment Application #1 identified a National Provider Identifier (NPI) of 1992844534 and a Provider Transaction Account Number (PTAN) of G8950934.1   The new address for Redhead Rehab, which was effective starting June 1, 2019, was 7215 116^th Avenue, SE, Newcastle, Washington.  The portions of Enrollment Application #1 in the record did not identify the owner of Redhead Rehab, but identified amanda@redhead.rehab as a correspondence email address.  CMS Ex. 1 at 2, 9, 15, 18-19.

In a July 19, 2019 letter addressed to Amanda Brannen, Noridian acknowledged receipt of what may be Enrollment Application #1 and requested completion of various sections of the enrollment application.  The letter advised that Noridian may reject the enrollment application within 30 days if the missing information was not provided.  The letter listed Ms. Koenig's name and provided a reference number of 1398285933.  CMS Ex. 2.

According to Petitioners' brief in this matter, authored by Amanda Brannen, during a phone call in July 2019, Noridian staff allegedly told Petitioners that they needed to submit a different enrollment application.  Ms. Brannen stated that Petitioners submitted the new enrollment application (Enrollment Application #2) and cited P. Ex. 1 as proof of its submission.  P. Br. at 2.  When reviewing P. Ex. 1, which is a fax log sheet, it shows a ten-page fax on July 31, 2019, sent to Noridian's fax number.  Compare P. Ex. 1, with CMS Ex. 2 at 2; see also CMS Ex. 13 at 4-6.  The record does not contain a copy of Enrollment Application #2.

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In a July 31, 2019 notice, addressed to Amanda Brannen at the address identified in Enrollment Application #1, Noridian approved a "change of information."  CMS Ex. 3 at 1.  This notice provided a different reference number (1398285931) than the one indicated in the July 19 letter, which supports Petitioners' contention that Enrollment Application #2 was submitted.  The notice listed Ms. Koenig's name, NPI, and PTAN.  Confusingly, the notice indicated that Ms. Koenig's group practice was Apple Physical Therapy LLC with PTAN GAB06838, and an effective enrollment date of October 1, 2015.2   CMS Ex. 3 at 1.  The notice also stated that Ms. Koenig's PTAN had been deactivated on April 1, 2019, but that the "PTAN has been activated."  CMS Ex. 3 at 1-2.

Chronologically, the record next contains an August 20, 2019 email from Noridian staff to Amanda Brannen, acknowledging receipt of a CMS-855I enrollment application (Enrollment Application #3) and requesting additional information by September 4, 2019.  The email indicated that Enrollment Application #3 was given "App Number 1409591053," which appears to be the reference number.  CMS Ex. 4; P. Ex. 2.  In her brief, Ms. Brannen stated that Petitioners responded to this request for information on August 22, 2019, and cited P. Ex. 3 as support for this contention.  P. Br. at 2.  A review of P. Ex. 3 is a fax log that shows kathleen@redhead.rehab faxed 35 pages to Noridian's fax number on August 22, 2019.  See also CMS Ex. 13 at 4-6.  The record may contain the contents of that fax because there is a partially completed CMS-855I that Ms. Koenig signed on August 20, 2019.  CMS Ex. 13 at 7-38.

The next document in the record is a September 25, 2019 email from Noridian staff to Amanda Brannen acknowledging receipt of a CMS-855R reassignment enrollment application (Enrollment Application #4) and requesting additional information within 30 days.  Noridian warned it may reject the application if the information was not timely provided.  CMS Ex. 5; P. Ex. 4.  In her brief, Ms. Brannen stated that Petitioners responded to this request for information on October 3, 2019, and cited P. Ex. 5 as support for this contention.3   P. Br. at 2.  A review of P. Ex. 5 is a fax log that shows kathleen@redhead.rehab faxed eight pages to Noridian's fax number on October 3, 2019.  See also CMS Ex. 13 at 4-6.

In an October 30, 2019 letter, Noridian indicated that it was rejecting one of Petitioners' enrollment applications; however, it is unclear which enrollment application.  CMS Ex. 6.  The reference number provided in the rejection letter was Enrollment Application #1's reference number.  Further, the letter stated that the application was received on June 27,

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2019, which would be consistent with the likely time-frame for Enrollment Application #1.  However, Noridian indicated that the reason for rejection was that additional information had been requested in an August 20, 2019 email, thus implicating Enrollment Application #3.  The letter listed the sections of the enrollment application that were missing information, but this list does not match either the list in the July 19 letter related to Enrollment Application #1 or the list in the August 20 email related to Enrollment Application #3.  Compare CMS Ex. 6 at 1, with CMS Exs. 2, 4.  The list indicated that the missing items are related to a CMS-855B application, again implicating Enrollment Application #1, but not Enrollment Application #3.  CMS Ex. 6 at 1.  It is implied that the rejection is based on Petitioners' failure to provide that information to Noridian.  On balance, the evidence weighs in favor of finding that Noridian's October 30, 2019 letter rejected Enrollment Application #1.  Based on Ms. Brannen's brief, Petitioners filed a new enrollment application in response to communication with Noridian staff related to the July 19 letter.  It seems likely that Petitioners did not submit the information requested for Enrollment Application #1 and Noridian simply was closing its review of Enrollment Application #1.

In addition, Noridian sent a second letter on October 30, 2019, rejecting an enrollment application that it received on July 24, 2019.  CMS Ex. 7.  This letter also indicates rejection was based on not providing information requested in an August 20, 2019 email.  The reference number this time is the same as the one provided in the August 20, 2019 email for Enrollment Application #3.  However, despite this, the letter's list of requested information is not the same as in the August 20 email, but rather the list indicated the requests for information were related to a CMS-855B enrollment application and not a CMS-855I enrollment application.  Compare CMS Ex. 7 at 1, with CMS Ex. 4.  Finally, this letter is inconsistent with Petitioners' claim that they responded to Noridian's request for information by fax shortly after receiving the August 20 email.  Despite the ambiguity presented by this letter, I find that the weight of evidence indicates that Noridian rejected Enrollment Application #3 with this letter.4

In a December 6, 2019 email, Noridian acknowledged receipt, through CMS's Provider Enrollment, Chain, and Ownership System (PECOS), of an electronically filed enrollment application (or enrollment applications) from Petitioners (Enrollment Application #5), which was assigned reference number of 1452337081 and a Tracking Identifier of T110120190003589.  CMS Ex. 8.  The email indicated that Noridian needed Petitioners to correct certain aspects of Enrollment Application #5.  Noridian gave Petitioners until January 5, 2020, to submit the requested revisions or Noridian would reject Enrollment Application #5.  The email did not specify the date of receipt of the enrollment application or applications.  CMS Ex. 8.

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On December 6, 2019, Ms. Brannen sent an email to Noridian indicating that Petitioners had made the requested corrections.  CMS Ex. 9.  On December 10, 2019, Noridian emailed that a document was missing and, on that same date, Ms. Brannen provided that document.  CMS Ex. 10.

In letters dated January 29, 2020 and January 30, 2020, Noridian both approved Enrollment Application #5 and closed as unnecessary another enrollment application that Petitioners had filed (Enrollment Application #6).  CMS Exs. 11-12.  I find that Noridian approved Enrollment Application #5 because the January 30, 2020 letter (i.e., initial determination) provides the same reference number as the one designated for Enrollment Application #5 in the December 6, 2019 email.  Compare CMS Ex. 12 at 1, with CMS Ex. 8 at 1.  In approving Enrollment Application #5, Noridian provided Redhead Rehab with a PTAN (G9005712) and assigned October 2, 2019, as the effective date for enrollment.  CMS Ex. 12 at 1.

Although the January 30, 2020 letter did not state when Enrollment Application #5 was received by Noridian, the January 29 letter stated that Enrollment Application #6 was received on November 1, 2019.  CMS Ex. 11 at 1.  I find that the date of receipt stated in the January 29, 2020 letter related to Enrollment Application #6 is the same receipt date as Enrollment Application #5 because, while Enrollment Applications #5 and #6 had different reference numbers, they both had the same PECOS Tracking Identifier of T110120190003589.  Compare CMS Ex. 8 at 1, with CMS Ex. 11 at 1; see also CMS Ex. 14 at 6-7 (Noridian indicating that it received two enrollment applications from Petitioners on November 1, 2019).

Other than a notation in the reconsidered determination, the record does not provide documentation indicating whether Noridian approved, denied, or rejected Petitioners' Enrollment Application #4, and the January 30, 2020 approval letter does not expressly state that Noridian approved a reassignment between Ms. Koenig and Redhead Rehab.

2. The effective date of Redhead Rehab's Medicare enrollment in the Medicare program is November 1, 2019, the date Noridian received Petitioners' CMS‑855B Enrollment Application that was subsequently approved, and Redhead Rehab's retrospective billing privileges commenced on October 2, 2019, 30 days before the effective date of enrollment.  42 C.F.R. §§ 424.520(d), 424.521.

The present case manifests a complicated history that appears to revolve around Ms. Koenig's effort to enroll her physical therapy practice in the Medicare program and to reassign her Medicare benefits to that practice.  Petitioners' reconsideration request expressly requested an effective date of June 1, 2019, because that is when Petitioners commenced the process of filing enrollment applications.  CMS Ex. 13 at 1.  The reconsideration request also indicated that Noridian's staff had provided incorrect

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information and failed to receive documents that Petitioners had submitted.  CMS Ex. 13 at 1.

Petitioners' hearing request references the PTAN assigned to Redhead Rehab in the January 30, 2020 approval letter and appeals the denial of the effective date sought in the reconsideration request.  Petitioners again indicate that they responded to Noridian's requests for additional information.  Finally, Petitioners' brief asserts, in greater detail, that Petitioners complied with requests for documentation.  P. Br. at 1-2.  Petitioners also assert that Noridian staff misled them multiple times.  P. Br. at 2.

Petitioners' arguments focus on the enrollment applications that were rejected rather than on the enrollment application that was approved.

The Social Security Act (Act) authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations governing the enrollment process for providers and suppliers.  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.  42 U.S.C. § 1395x(d); see also 42 U.S.C. § 1395x(u).  Physical therapists in independent practice are suppliers.  42 C.F.R. § 498.2 (definition of Supplier); see also 42 C.F.R. § 498.5(g).

A supplier must enroll in the Medicare program to receive payment for covered Medicare items or services.  42 C.F.R. § 424.505.  The term "Enroll/Enrollment means the process that Medicare uses to establish eligibility to submit claims for Medicare covered items and services, and the process that Medicare uses to establish eligibility to order or certify Medicare covered items and services.  The process includes . . . [i]dentification and confirmation of the . . . supplier's practice location(s) and owners."  42 C.F.R. § 424.502 (emphasis in original).  A supplier seeking Medicare billing privileges must "submit enrollment information on the applicable enrollment application.  Once the . . . supplier successfully completes the enrollment process . . . CMS enrolls the . . . supplier into the Medicare program."  42 C.F.R. § 424.510(a).

When enrolling a non-physician practitioner's group practice, CMS establishes an effective date for billing privileges.  The effective date for 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 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.  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).  These effective date rules also apply to the effective date of the reassignment of Medicare benefits.  Gaurav Lakhanpal, MD, DAB No. 2951 at 6 (2019).  When CMS

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assigns an effective date, CMS may permit a retrospective billing period of up to 30 days.  42 C.F.R. § 424.521.

Further, the effective date of enrollment is generally appealable through the administrative review process.  42 C.F.R. § 498.3(b)(15).  However, in provider and supplier enrollment matters, CMS or a CMS contractor must first issue a reconsidered determination before the provider or supplier may obtain administrative law judge review.  42 C.F.R. §§ 498.5(l), 498.25(a)(3).

In the present case, Noridian only issued one reconsidered determination.  CMS Ex. 14.  That decision was based on an appeal from the January 30, 2020 initial determination approving Enrollment Application #5.  There is no dispute that Enrollment Application #5 was received by Noridian on November 1, 2019, making that date the effective date for Medicare enrollment and billing privileges for Redhead Rehab.  Noridian also provided Petitioners with the earliest start date for retrospective billing privileges of October 2, 2019, which is 30 days prior to the effective date of enrollment and billing privileges.

As mentioned above, Petitioners really mean to appeal Noridian's rejection of previous enrollment applications.  However, the decision to reject an application is not subject to further appeal.  42 C.F.R. § 424.525(d).  Consequently, I have no authority to review Noridian's rejections.

Petitioners also raise concerns over the competence and veracity of Noridian's staff during the enrollment process.  However, Petitioners' arguments amount to a request for equitable relief.  I do not have authority to provide equitable relief based on principles of fairness and thus cannot change Petitioners' effective date for that reason.  US Ultrasound, DAB No. 2302 at 8 (2010).

VII. Conclusion

I affirm CMS's determination that Petitioners' effective date for Medicare billing privileges is November 1, 2019, with a retrospective billing period commencing on October 2, 2019.

1. Although Ms. Koenig's name does not appear on the portions of Enrollment Application #1 that are in the record, the NPI and PTAN provided on that application are hers.  Compare CMS Ex. 1 at 19, with CMS Ex. 3 at 1.
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2. It is not clear whether Apple Physical Therapy LLC was Ms. Koenig's former employer and the practice group from which Ms. Koenig was trying to disassociate so that she could change her practice location to that of her practice group, Redhead Rehab.
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3. Perplexingly, in the same brief, Ms. Brannen denied having received the September 25, 2019 email from Noridian.  P. Br. at 2.
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4. If Noridian's October 30, 2019 letter (CMS Ex. 7) is correct that Enrollment Application #3 was received by Noridian on July 24, 2019, then Enrollment Application #3 was filed earlier than Enrollment Application #2.
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