Justin McCarthy, M.D., DAB CR5749 (2020)

DECISION

I affirm the determination of Novitas Solutions (Novitas), a Centers for Medicare & Medicaid Services (CMS) contractor, that the effective date for Petitioner's temporary Medicare billing privileges is March 1, 2020.

I.  Procedural History

On August 6, 2020, Petitioner requested a hearing to dispute Novitas's reconsidered determination upholding an initial determination concerning the effective date of his temporary Medicare billing privileges.  On August 10, 2020, the Civil Remedies Division (CRD) acknowledged his hearing request and issued my Standing Prehearing Order.  CMS filed a motion for summary judgment/prehearing brief and nineteen exhibits (CMS Exs. 1-19), and Petitioner filed a brief (P. Br.) and five exhibits (P. Exs. 1-5).

II.  Decision on the Written Record

I admit all of the proposed exhibits into the record.

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The Standing Prehearing Order advised the parties to submit written direct testimony for each of their witnesses 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 March 1, 2020, as the effective date for Petitioner's temporary Medicare 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 and Conclusions of Law

1. On September 9, 2019, Novitas received Petitioner's Medicare enrollment application (CMS-855I) and an application to reassign his Medicare benefits (CMS-855R) to St. Mary's Hospital and Medical Center, Inc.  CMS Ex. 1 at 61; CMS Ex. 2 at 15.
2. On October 3, 2019, Novitas sent Petitioner a request for information related to his reassignment application.  The request warned that "[f]ailure to provide all requested information will cause the application to be rejected."  CMS Ex. 3 at 1.  
3. In letters dated November 4, 2019, Novitas rejected Petitioner's enrollment and reassignment applications because Petitioner failed to provide all of the information that Novitas requested.  CMS Exs. 4-5.    
4. On November 12, 2019, Novitas received from Petitioner new enrollment and reassignment applications.  CMS Ex. 6 at 36; CMS Ex. 7 at 11.
5. In letters dated January 8, 2020, Novitas notified Petitioner that he needed to provide additional information for both his enrollment and reassignment applications.  Novitas warned Petitioner that a failure to provide that information will result in rejection of the applications.  CMS Ex. 8 at 1-2; CMS Ex. 9 at 1. 
6. Petitioner submitted additional information; however, in letters dated March 16, 2020, Novitas informed Petitioner that he failed to provide all requested

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6. information and Novitas was rejecting the enrollment and reassignment applications.  CMS Exs. 10-12.   
7. In an initial determination dated April 6, 2020, Novitas informed Petitioner that, effective March 1, 2020, he was granted temporary Medicare billing privileges under a CMS waiver related to the national COVID-19 emergency.  Novitas took this action based on an April 6, 2020 telephone call from Petitioner.  CMS Ex. 13.   
8. Petitioner requested reconsideration, which Novitas received on April 30, 2020.  CMS Exs. 14-15; P. Ex. 1.   
9. On July 31, 2020, Novitas issued an unfavorable reconsidered determination, affirming the March 1, 2020 effective date based on Petitioner's April 6, 2020 telephone call to Novitas.  CMS Ex. 18; P. Ex. 5.   
10. Under the waiver to enrollment requirements for physicians authorized by the Secretary of Health and Human Services (Secretary) pursuant to section 1135 of the Social Security Act (Act), CMS granted Petitioner the earliest effective date for temporary Medicare billing privileges back to the beginning (March 1, 2020) of the COVID-19 national emergency, as declared by the President of the United States (President).  See 42 U.S.C. § 1320b-5(b), (g); 85 Fed. Reg. 15,337 (Mar. 18, 2020).            

VI.  Analysis

The Act authorizes the 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).

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 owner(s)."  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).

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When enrolling a physician, CMS establishes an effective date for billing privileges.  The effective date for Medicare billing privileges for physicians, non-physician practitioners, and physician or non-physician practitioner organizations is the later of the "date of filing" of the enrollment application 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" an 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 assigns an effective date, CMS may permit a retrospective billing period of up to 30 days; however, if a presidentially declared disaster (42 U.S.C. §§ 5121-5206) precluded a physician from enrolling in the Medicare program before rendering services to Medicare beneficiaries, then CMS may grant up to 90 days of retrospective billing.     42 C.F.R. § 424.521.

The present case does not follow the normal enrollment rules discussed above.  Instead, due to the COVID-19 pandemic, these rules have been temporarily waived and modified.

The Secretary determined that, under section 319 of the Public Health Service Act, a public health emergency existed since January 27, 2020, based on COVID-19.  https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx (last visited Oct. 22, 2020); see 42 U.S.C. § 247d.  On March 13, 2020, the President declared, under the National Emergencies Act, that a national emergency existed in the United States due to COVID-19 since March 1, 2020.  85 Fed. Reg. 15,337 (Mar. 18, 2020).  The declaration expressly stated that "[t]he Secretary . . . may exercise the authority under section 1135 of the [Act] to temporarily waive or modify certain requirements of the Medicare . . . program[] . . . throughout the duration of the public health emergency declared in response to the COVID-19 outbreak."  85 Fed. Reg. at 15,337.

Section 1135 of the Act permits the Secretary to waive or modify Medicare program participation requirements for physicians and other health care providers to ensure that there are sufficient health care items and services for Medicare program beneficiaries in areas affected by a presidentially declared emergency when the Secretary has also declared a public health emergency.  42 U.S.C. § 1320b-5(a), (b)(1)(B), (g)(2).  Using this authority, on March 13, 2020, the Secretary authorized CMS, retroactive to March 1, 2020, to waive "[c]ertain . . . program participation or similar requirements for . . . physician[s] or other health care practitioner[s] or professional[s] . . . ."  https://www.phe.gov/emergency/news/healthactions/section1135/Pages/covid19-13March20.aspx (last visited Oct. 22, 2020).  CMS in turn directed CMS contractors to create toll-free hotlines so that physicians and other suppliers could enroll and receive

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temporary Medicare billing privileges.  CMS Ex. 19 at 1.  CMS authorized physicians to "be assigned an effective date as early as March 1, 2020."  CMS Ex. 19 at 3.

In the present case, there is no dispute that Petitioner called Novitas on April 6, 2020, concerning his enrollment and that Novitas granted him temporary Medicare billing privileges retroactive to March 1, 2020.  CMS Ex. 13 at 1; CMS Ex. 18 at 2.  Under the President's declaration and the Secretary's waiver under section 1135 of the Act, Petitioner received the earliest possible effective date for temporary Medicare billing privileges.

Petitioner's brief in this matter is not directed at the effective date of his temporary Medicare billing privileges.  Rather, Petitioner's focus is on receiving regular enrollment in the Medicare program with an effective date of July 1, 2019, based on the enrollment application filed in September 2019.  P. Br. at 2-3.  In making this argument, Petitioner alludes to a number of difficulties with the application process as a basis for receiving the July 1, 2019 effective date.  P. Br. at 2-4; P. Ex. 1.

I have no jurisdiction to consider Petitioner's arguments or provide the remedy he seeks.  Novitas rejected Petitioner's previously filed enrollment applications and those rejections are not subject to further appeal.  42 C.F.R. § 424.525(d).  I only have authority to decide whether the effective date assigned in the April 6, 2020 initial determination, as upheld on reconsideration, is correct.  As indicated above, March 1, 2020, is the earliest effective date for temporary Medicare billing privileges that Novitas can provide to Petitioner.

VII.  Conclusion

I affirm Novitas's March 1, 2020 effective date for Petitioner's temporary Medicare billing privileges.