Subodhkumar Sundaram and Progressive Critical Care Medicine, LLC, DAB CR5747 (2020)

DECISION

Subodhkumar Sundaram, M.D., is a physician, licensed to practice in Virginia, and Petitioner, Progressive Critical Care Medicine, LLC, is his solely-owned medical practice.  Petitioner applied to enroll in the Medicare program.  The Centers for Medicare & Medicaid Services (CMS) granted the application with a retrospective billing date of January 16, 2018, (and, by inference, an effective date of February 15, 2018).  Petitioner now challenges that effective date.

Because Petitioner filed its subsequently-approved enrollment application on February 15, 2018, I find that February 15 is the correct effective date of enrollment.

Background

In a letter dated March 30, 2018, the Medicare contractor, Palmetto GBA, advised Petitioner that it approved the practice's Medicare enrollment with an "effective date" of January 16, 2018.  CMS Ex. 2.  In fact, as explained below, the contractor was granting Petitioner a billing date of January 16, 2018; the effective date of enrollment was

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February 15, 2018 (see discussion below).  Petitioner sought reconsideration, asking that the effective date be changed to November 27, 2017, because it had earlier submitted an application, but to the wrong contractor.  CMS Ex. 4.

In a reconsidered determination, dated August 20, 2018, the contractor denied Petitioner the earlier effective date, concluding (in error) that January 16 was the correct effective date.  In fact, January 16 was the retrospective billing date.  CMS Ex. 5.

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 Pre-hearing Order at 4, 5, 6 (¶¶ 4(c)(iv), 8, 10) (Nov. 8, 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 five exhibits (CMS Exs. 1-5).  Petitioner submits a response.  (P. Br.).  In the absence of any objections, I admit into evidence CMS Exs. 1-5.  See Acknowledgment and Pre-hearing Order at 5 (¶ 7).

Discussion

1. On February 15, 2018, Petitioner filed its subsequently-approved Medicare enrollment application, and the effective date of enrollment can be no earlier than that date.  42 C.F.R. § 424.520(d).1

Enrollment.  Petitioner 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 its 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 physician meets all program requirements, CMS may allow it 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. 2, 5.  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 February 15, 2018, the Medicare contractor received Petitioner's enrollment application (CMS-855I), which the contractor approved.  CMS Exs. 1, 2.3   Thus, pursuant to section 424.520(d), the date Petitioner filed its subsequently-approved enrollment application – February 15, 2018 – is the correct effective date of its enrollment, and the enrollment date for the practice can be no earlier than that.  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 for 30 days, back to January 16, 2018.

Petitioner, nevertheless, asks for an earlier enrollment date.  Petitioner initially submitted its application to the wrong contractor.  Because Dr. Sundaram had previously worked in a nearby hospital, Petitioner reasonably but erroneously assumed that the same Medicare contractor was responsible for the new practice as well.  P. Br. at 1.  The error may be understandable, but the regulations are explicit:  a supplier must submit its complete

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enrollment application and documentation "to the designated Medicare fee-for-service contractor."  42 C.F.R. § 424.510(d)(1).  The parties agree that Palmetto GBA was the designated contractor.  CMS Ex. 3.  As sympathetic as I may be to Petitioner's confusion, I have no authority to grant Petitioner an earlier effective date on that basis.  See Sokoloff, DAB No. 2972 at 9 (holding that the reviewer has no authority to grant an earlier effective date based on equitable principles).

Conclusion

Because Petitioner filed its subsequently-approved enrollment application on February 15, 2018, CMS properly granted Medicare enrollment effective that date.  CMS was authorized to allow the practice 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-855I enrolls physicians and non-physician practitioners.  Here, the contractor stamped the paper application with a "Julian date stamp," which counts the days of the year consecutively.  The first two digits stamped across the top of the application indicate the year filed – 2018.  The next three digits indicate the date filed, the 46th day of 2018, or February 15.  CMS Ex. 1.
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