Jeffrey A. Pence, DC, DAB CR5746 (2020)

DECISION

Petitioner, Jeffrey A. Pence, DC, is a chiropractor, practicing in Iowa, who participates in the Medicare program as a supplier of services.  Following his chiropractic practice's change of ownership, he applied to reassign his billing privileges to his new employer.  The Centers for Medicare & Medicaid Services (CMS) granted his application with a retrospective billing date of March 3, 2018 (and, by inference, an effective date of April 2, 2018).  Petitioner now challenges that effective date.

Because Petitioner filed his subsequently-approved enrollment application on April 2, 2018, I find that April 2 is the correct effective date of his enrollment.

Background

In a letter dated April 19, 2018, the Medicare contractor, Wisconsin Physicians Service Government Health Administrators, advised Petitioner Pence that it approved his initial Medicare application enrollment with an "effective date" of March 3, 2018.  CMS Ex. 3.  In fact, the contractor was granting Petitioner a billing date of March 3, 2018; the effective date of Petitioner's enrollment was April 2, 2018 (see discussion below).

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Petitioner sought reconsideration, complaining that the contractor's staff provided poor guidance and asking that the effective date of his enrollment be changed to December 12, 2017.  CMS Ex. 4.

In a reconsidered determination, dated July 23, 2018, a contractor hearing officer denied Petitioner the earlier effective date, concluding (in error) that March 3 was the correct effective date.  In fact, March 3 was a retrospective billing date.  CMS Ex. 1.

Petitioner appealed.

CMS moves for summary judgment.  However, because neither party proposes any witnesses, an in-person hearing would serve no purpose.  See Acknowledgment and Prehearing Order at 4, 5, 8 (¶¶ 4(c)(iv), 8, 10) (October 2, 2018).  I may therefore decide this case based on the written record, without considering whether the standards for summary judgment are satisfied.

With its motion and brief (CMS Br.), CMS submits four exhibits (CMS Exs. 1-4).  Petitioner submits a written response (P. Br.).

Discussion

1. On April 2, 2018, Petitioner filed his subsequently-approved application to reassign his billing privileges, and his effective date can be no earlier than that date.  42 C.F.R. § 424.520(d).1

Enrollment.  Petitioner Pence participates in the Medicare program as a "supplier" of services.  Social Security Act § 1861(d); 42 C.F.R. § 498.2.  To receive Medicare payments for the services furnished to program beneficiaries, a prospective supplier must enroll in the program.  42 C.F.R. § 424.505.  "Enrollment" is the process by which CMS and its contractors:  1) identify the prospective supplier; 2) validate the supplier's eligibility to provide items or services to Medicare beneficiaries; 3) identify and confirm a supplier's owners and practice location; and 4) grant the supplier Medicare billing privileges. 42 C.F.R. § 424.502.

To enroll, a prospective supplier must complete and submit an enrollment application.  42 C.F.R. §§ 424.510(d)(1), 424.515(a).  An enrollment application is either a CMS-approved paper application or an electronic process approved by the Office of

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Management and Budget.  42 C.F.R. § 424.502.2   When CMS determines that a prospective supplier meets the applicable enrollment requirements, it grants Medicare billing privileges, which means that the supplier can submit claims and receive payments from Medicare for covered services provided to program beneficiaries.  The effective date for his billing privileges "is the later of the date of filing" a subsequently-approved enrollment application or the date that the supplier first began furnishing services at a new practice location.  42 C.F.R. § 424.520(d) (emphasis added).

If a non-physician practitioner meets all program requirements, CMS may allow him to bill retrospectively for up to 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).  Some Medicare contractors have created confusion because they are inclined to conflate the effective date with the retrospective billing date, as the contractor did in this case.  CMS Exs. 1, 3.  The distinction is important; I have the authority to review "the effective date of . . . supplier approval."  42 C.F.R. § 498.3(b)(15).  But nothing in the regulations gives me the authority to review CMS's determinations regarding retrospective billing.

Here, on April 2, 2018, the Medicare contractor received Petitioner's enrollment application (CMS-855R), which it subsequently approved.  CMS Ex. 2.3   Thus, pursuant to section 424.520(d), the date Petitioner filed his subsequently-approved enrollment application – April 2, 2018 – is the correct effective date of enrollment.  Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 (2019); Urology Grp. of NJ, LLC, DAB No. 2860 (2018); Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017), aff'd sub nom. Goffney v. Azar, No. CV 17-8032 MRW (C.D. Cal. Sept. 25, 2019).

Pursuant to its authority under section 424.521(a)(1), CMS allowed Petitioner to bill retrospectively, back to March 3, 2018.

Petitioner, nevertheless, asks for the December 2017 effective date.  He explains that his employer was undergoing a change of ownership.  Its staff called the contractor to ask what documentation he should file but were not given "proper and accurate information

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in full."  P. Br. at 2.  Petitioner is not entitled to an earlier effective dated based on the inadequate or misleading guidance from a contractor's employee.  The regulations are explicit, and neither the contractor nor its employees have the authority to change them – by providing misinformation or otherwise.  See Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 63 (1984) (holding that those who participate in the Medicare program are supposed to understand its rules); Hartford HealthCare at Home, Inc., DAB No. 2787 at 8-9 (2017) (holding that purportedly misleading language in a state agency's letters was not material where the regulations vest the Secretary and CMS, not the state agency, with the authority to impose remedies); Schweiker v. Hansen, 450 U.S. 785 (1981) (holding that a Social Security Administration employee's erroneous advice – upon which an applicant for mother's insurance benefits relied, to her detriment – did not estop the Secretary of Health and Human Services from denying her retroactive benefits for the period for which she was eligible for benefits but had not filed the required written application).

Nor may I grant Petitioner an earlier effective date based on any equitable or policy arguments.  Sokoloff, DAB No. 2972 at 9.

Conclusion

Because Petitioner filed his subsequently-approved enrollment application on April 2, 2018, CMS properly granted his Medicare enrollment effective that date.  CMS was authorized to allow him to bill retrospectively.

1. I make this one finding of fact/conclusion of law.
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2. CMS's electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).
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3. Form CMS-855R reassigns the practitioner's billing privileges to a Medicare-eligible entity, which may submit claims and receive payment for Medicare services provided by the practitioner.  On each page of the application (lower left corner), the contractor stamped Petitioner's paper application with a "Julian date stamp," which counts the days of the year consecutively.  The first four digits stamped on the application indicate the year filed – 2018.  The next three digits indicate the date filed, the 92nd day of 2018, or April 2.  CMS Ex. 2.
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