Rosalyn Gooch, CRNA, DAB CR5761 (2020)

DECISION

Petitioner, Rosalyn Gooch, CRNA, is a certified registered nurse anesthetist, practicing in Texas, who participates in the Medicare program as a supplier of services.  She applied to reassign her billing privileges to a new practice, Eye Surgery Center of East Texas, PLLC.  The Centers for Medicare & Medicaid Services (CMS) granted her application with a retrospective billing date of February 16, 2018 (and an effective date of May 17, 2018).  Petitioner now challenges that effective date. 

Because Petitioner filed her subsequently-approved enrollment application on May 16, 2018, I find that May 16 is the correct effective date of her enrollment.  Because CMS has granted her a 90-day retrospective billing date, February 15, 2018, is the appropriate retrospective billing date.

Background

In a letter dated June 12, 2018, the Medicare contractor, Novitas Solutions, advised Petitioner Gooch that it approved her reassignment of benefits request with an “effective date” of April 17, 2018.  CMS Ex. 6.  In fact, the contractor was granting Petitioner a

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retrospective billing date of April 17, 2018.  Based on this determination, the effective date of Petitioner’s enrollment was May 17, 2018 (see discussion below). 

Petitioner sought reconsideration, explaining that she was late in filing her application because of “uncertainty and complications of the billing process for [her] services.”  She asked that the effective date of her enrollment be changed to January 17, 2018, the day she began providing services at her new facility.  CMS Ex. 4. 

In a reconsidered determination, dated September 18, 2018, a contractor hearing specialist denied Petitioner a January 17, 2018 effective date and implicitly affirmed the May 17, 2018 effective date.  However, the hearing specialist determined that Petitioner was entitled to an earlier retrospective billing date, based on a presidentially-declared disaster for the State of Texas.  She granted Petitioner the maximum retrospective billing days allowed by the regulations – 90 days – giving Petitioner a retrospective billing date of February 16, 2018.  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 3, 5 (¶¶ 4(c)(iv), 8, 10) (November 21, 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 six exhibits (CMS Exs. 1-6).  Petitioner submits a written response (P. Br.).  In the absence of any objections, I admit into evidence CMS Exs. 1-6. 

Discussion

1. On May 16, 2018, Petitioner filed her subsequently‑approved application to reassign her billing privileges, and her effective date can be no earlier than that date.  42 C.F.R. § 424.520(d).1

Enrollment.  Petitioner Gooch 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

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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 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 her 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 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).  CMS may allow the practitioner to bill retrospectively for up to 90 days prior to the effective date “if a Presidentially-declared disaster under the . . . Robert T. Stafford Act . . . precluded enrollment in advance of providing services to Medicare beneficiaries.”  42 C.F.R. § 424.521(a)(2). 

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, 6.  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. 

Effective filing date.  Here, on May 16, 2018, Petitioner filed, via the PECOS system, her Medicare enrollment application (CMS-855R), which was subsequently approved.  CMS Ex. 3 at 1.3   Thus, pursuant to section 424.520(d), the date Petitioner filed her subsequently-approved enrollment application – May 16, 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)(2), CMS has allowed

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Petitioner to bill 90-days retrospectively, so her retrospective billing date is February 15, 2018.

Signature date.  Petitioner signed her application on May 17, 2018, the date after she filed it, and CMS considered May 17 the date of filing, which is incorrect.  Under 42 C.F.R. § 424.525(a)(1), applicants have an opportunity to cure any deficiencies or supply any missing documentation, including a missing signature.  Tri-Valley Family Med., Inc., DAB No. 2358 at 5-6 (2010).  Where, as here, an application lacks the necessary signatures, the regulations give the Medicare contractor two options:  1) treat the missing signature like any other missing information and request it within the regulatory deadline; or 2) treat the failure as noncompliance and deny the application.  Tri-Valley, DAB No. 2358 at 6.  So long as the contractor continues to process that application to a decision – as the contractor did here – the effective date will relate back to the date of its filing.  Karthik Ramaswamy, M.D., DAB No. 2563 at 5 (2014); Tri‑Valley, DAB No. 2358.

In the Board’s view, the regulatory changes, effective January 1, 2009, that added section 424.520(d), did not change the regulations governing the contractor’s options for responding to a deficient enrollment application.  The preamble to section 424.520 says that the “date of filing” is the date that a Medicare contractor receives a signed application that it is able to process to approval.  73 Fed. Reg. 69,726, 69,769 (2008).  As the Board points out, “[t]his was the first indication that lack of a signature on an application might affect the timing of when a physician could get paid for covered services.”  Tri-Valley, DAB No. 2358 at 6.  The Board concluded that nothing in the regulations or the language of the preamble indicates that the effective date should be determined by the submission of a complete application: 

Instead, the regulation refers to an application that is “subsequently approved” by the contractor.  It does not require that the application be “approvable” as initially submitted.  The regulatory process, which was unchanged, included provision for the contractor to request information or supporting documentation if an application was not complete.  Thus, if the information or documentation was timely submitted and all other requirements were met, that application could be approved, and a provider or supplier was not required to submit an additional application.  The preamble language . . . recognizes this by referring to an application that a contractor is able to process to approval.  Indeed, the preamble indicated agreement with the comment that the filing date should not be the date when the application is “deemed complete and ready for approval.” 

Tri-Valley, DAB No. 2358 at 7 (citing 73 Fed. Reg. at 69,769) (emphasis in original).

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Further, Judge Anderson recently noted that section 1871 of the Act supports the Board’s reluctance to give legal effect to sub-regulatory guidance that directly and negatively affects a supplier’s effective date for enrollment.  Martina Sheftic, M.D., DAB CR5563 at 6 (2020).  Section 1871 provides:

No rule, requirement, or other statement of policy (other than a national coverage determination) that establishes or changes a substantive legal standard governing the scope of benefits, the payment for services, or the eligibility of individuals, entities or organizations to furnish or receive services or benefits under this title shall take effect unless it is promulgated by the Secretary by regulation . . . .

Act § 1871(a)(2); see Azar v. Allina Health Servs., 139 S. Ct. 1804, 1810-14 (2019) (rejecting agency efforts to change reimbursement rules through sub-regulatory guidance).4

For reasons unrelated to this conclusion, Tri-Valley represented a bit of a departure.  The case involved an earlier application that, in the Board’s view, “could have been processed to approval” had the contractor “properly requested” missing information.  Tri-Valley, DAB No. 2358 at 1.  Even though that earlier application was rejected (a determination that is not reviewable), and the Board was reviewing the effective date of a subsequent application, the review panel in Tri-Valley accepted, as the effective date, the filing date of the original application.  Since then, the Board has soundly rejected supplier requests for review of prior applications under the guise of challenging the effective dates of their subsequently-approved applications.  Ramaswamy, DAB No. 2563 at 5. 

We will not determine de novo that an application could have been processed to approval in the face of the contractor’s actual determination to deny the application because it was not approvable.  To do so would improperly use scope of

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review to revisit a legally binding and administratively final determination.

Ramaswamy, DAB No. 2563 at 9 (emphasis in original).

The Board in Ramaswamy nevertheless agreed with the Tri-Valley conclusion that “while the contractor may require and request additional information to complete the application, the effective date will relate back to the date of filing so long as that application continues to be processed to a decision on whether to approve it.”  Ramaswamy, DAB No. 2563 at 5 (emphases added and in original).

Thus, Petitioner’s effective date of enrollment is May 16, 2020.  Because CMS has authorized her to bill retrospectively for 90 days, February 15, 2018, is therefore her retrospective billing date.

I may not, however, grant Petitioner an earlier effective date based on any equitable or policy arguments.  Sokoloff, DAB No. 2972 at 9.

Conclusion

Because Petitioner filed her subsequently-approved enrollment application on May 16, 2018, May 16 is her effective date of enrollment.  Because CMS authorized 90-days of retrospective billing, February 15, 2018, is her retrospective billing date.

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.
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4. Moreover, although the regulation has not changed, CMS has changed its instructions to contractors, going back and forth on how they should treat PECOS applications that are missing signatures.  Compare MPIM ¶ 15.17A (Rev. 582, Issued:  03-04-15; Effective 05-28-15) (“For . . . PECOS applications, the date of filing is the date that the contractor received an electronic version of the enrollment application and a signed certification statement submitted via paper or electronically”) with MPIM ¶ 15.17A (Rev. 824, Issued:  09-05-18; Effective 10-01-18) (“The date of filing for paper Form CMS-855 applications is the date on which the contractor received the application regardless of whether the application was submitted via paper or Internet-based PECOS.”).
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