Brown Chiropractic LLC, DAB CR5866 (2021)

DECISION

The effective date of Medicare enrollment and billing privileges of Petitioner, Brown Chiropractic LLC,Dr. Arika Brown, DC requested the hearing on behalf of her solely owned practice group, Brown Chiropractic LLC. is November 5, 2019, with retrospective billing privileges beginning October 6, 2019.

I.  Background and Procedural History

Wisconsin Physicians Service Insurance Corporation, a Medicare administrative contractor (MAC), notified Petitioner by letter dated December 11, 2019, that Petitioner’s application to enroll in Medicare was approved.  The letter lists the effective date as

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October 6, 2019.As explained hereafter, October 6, 2019 is actually the first day of a 30-day period for retrospective billing and the effective date of Medicare enrollment of Petitioner is November 5, 2019.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 165-167. 

On December 13, 2019, Petitioner requested a reconsidered determination.  CMS Ex. 1 at 168.  On January 24, 2020, the MAC issued a reconsidered determination.  The reconsidered determination upheld November 5, 2019 as the effective date of Medicare enrollment.  CMS Ex. 1 at 1-3.  Petitioner requested a hearing before an administrative law judge (ALJ) on February 10, 2020 (RFH).  This case was assigned to me on February 25, 2020 and an Acknowledgment and Prehearing Order (Prehearing Order) was issued at my direction. 

On March 26, 2020, CMS filed a motion for summary judgment (CMS Br.) and one exhibit (CMS Ex. 1).  On April 29, 2020, Petitioner filed a letter with 60 pages of documents, largely duplicates of the documents offered as part of CMS Ex. 1.  I treat Petitioner’s letter as its brief (P. Br.) and the 60 pages of documents as Petitioner’s exhibit 1 (P. Ex. 1).Citations to duplicated documents are to CMS Ex. 1, rather than to both CMS Ex. 1 and P. Ex. 1.  On May 14, 2020, CMS waived its right to file a reply.  The parties have not objected to my consideration of CMS Ex. 1 and P. Ex. 1 and they are admitted as evidence. 

II.  Discussion

A.  Applicable Law

Section 1831 of the Social Security Act (the Act) (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B.  Payment under the program for services rendered to Medicare-eligible beneficiaries may only be made to eligible providers of services and suppliers.Petitioner, a chiropractic group practice, is a “supplier” under the Act and the regulations.  A “supplier” furnishes services under Medicare and the term supplier applies to physicians or other practitioners and facilities that are not included within the definition of the phrase “provider of services.”  Act § 1861(d) (42 U.S.C. § 1395x(d)).  A “provider of services,” commonly shortened to “provider,” includes hospitals, critical access hospitals, skilled nursing facilities, comprehensive outpatient rehabilitation facilities, home health agencies, hospice programs, and a fund as described in sections 1814(g) and 1835(e) of the Act.  Act § 1861(u) (42 U.S.C. § 1395x(u)).  The distinction between providers and suppliers is important because they are treated differently under the Act for some purposes.  Act

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§§ 1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395u(h)(1)).  Administration of the Part B program is through the MACs.  Act § 1842(a) (42 U.S.C. § 1395u(a)).

The Act requires the Secretary of Health and Human Services (the Secretary) to issue regulations that establish a process for the enrollment of providers and suppliers, including the right to a hearing and judicial review of certain enrollment determinations.  Act § 1866(j) (42 U.S.C. § 1395cc(j)). 

Pursuant to 42 C.F.R. § 424.505,Citations are to the October 1, 2019 revision of the Code of Federal Regulations (C.F.R.) that was in effect at the time of the initial determination by the MAC, unless otherwise indicated.  An appellate panel of the Departmental Appeals Board (Board) concluded in Mark A. Kabat, D.O., DAB No. 2875 at 9-11 (2018), that the applicable regulations are those in effect at the time of the initial determination.  The Board also previously concluded that the only determination subject to my review in a provider and supplier enrollment case such as this is the reconsidered determination.  Neb Grp. of Ariz. LLC, DAB No. 2573 at 7 (2014). a provider or supplier must be enrolled in the Medicare program and be issued a billing number to have billing privileges and to be eligible to receive payment for services rendered to a Medicare-eligible beneficiary.  The effective date of enrollment in Medicare of physicians, nonphysician practitioners, and physician and nonphysician practitioner organizations, such as Petitioner, is governed by 42 C.F.R. § 424.520(d).  The effective date of enrollment for physicians, nonphysician practitioners, or physician and nonphysician practice groups may only be the later of two dates:  the date of receipt of the application for enrollment that was subsequently approved by a MAC charged with reviewing the application on behalf of CMS; or the date when the physicians, nonphysician practitioners, or physician and nonphysician practice groups first began providing services at a new practice location.  42 C.F.R. § 424.520(d).  An enrolled physician, nonphysician practitioner, or a physician or nonphysician group may retrospectively bill Medicare for services provided to Medicare-eligible beneficiaries up to 30 days prior to the effective date of enrollment, if circumstances precluded enrollment before the services were provided.  Retrospective billing for up to 90 days prior to the effective date of enrollment is permitted only in case

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of a Presidentially declared disaster pursuant to 42 U.S.C. §§ 5121-5207.There is no allegation or evidence that such a disaster declaration was in effect during the period of March 1, 2019 through December 11, 2019, when the reconsidered determination was issued.  RFH; P. Br.; CMS Ex. 1 at 1.  42 C.F.R. § 424.521.

The Secretary has issued regulations that establish the right to a hearing and judicial review of certain enrollment determinations.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).  Pursuant to section 1866(h)(1) and (j)(8), a provider or supplier whose enrollment application or renewal application is denied is entitled to an administrative hearing and judicial review.  Pursuant to 42 C.F.R. § 498.3(b)(15), a provider or supplier’s effective date of enrollment is an initial determination that is subject to administrative review by an ALJ after a reconsidered determination.  42 C.F.R. § 498.5(l)(1)-(2).  Appeal and review rights are specified by 42 C.F.R. § 498.5. 

B.  Issues

Whether summary judgment is appropriate, and

Whether Petitioner’s effective date for Medicare enrollment is November 5, 2019, with retrospective billing privileges beginning October 6, 2019.

C.  Findings of Fact, Conclusions of Law and Analysis

My conclusions of law are set forth in bold followed by my findings of fact and analysis. 

1.  Summary judgment is appropriate.

The material facts are undisputed, CMS is entitled to judgment as a matter of law, and summary judgment is appropriate.

Petitioner is entitled to a hearing on the record before an ALJ under the Act.  Act §§ 205(b); 1866(h)(1), (j)(8); Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004).  However, when summary judgment is appropriate, no hearing is required.  The Board has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498.  See, e.g., Crestview Parke, 373 F.3d at 748-51; Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997).  The Board has accepted that Fed. R. Civ. P. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate.

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I advised the parties in the Prehearing Order that summary judgment is an available procedural device and that the law as it has developed under Fed. R. Civ. P. 56 will be applied.  Prehearing Order ¶¶ II.D., G.  Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law.  See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 5 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 5 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein). 

2.  Pursuant to 42 C.F.R. § 424.520(d), Petitioner’s effective date of Medicare enrollment is November 5, 2019, the date of receipt by the MAC of a Medicare enrollment application (CMS-855I) from Petitioner that the MAC processed to approval.

3.  Pursuant to 42 C.F.R. § 424.521(a)(1), Petitioner is authorized to bill Medicare for services provided to Medicare-eligible beneficiaries up to 30 days prior to the effective date of enrollment, that is, beginning on October 6, 2019.

a.  Undisputed Facts

On about June 13, 2019, the MAC received an enrollment application (CMS-855R) from Petitioner that was signed by Petitioner’s sole owner Dr. Brown on May 28, 2019.  CMS Ex. 1 at 6-10, 82.  The MAC requested on June 24, 2019, that Petitioner submit a Medicare enrollment application (CMS-855I).  CMS Ex. 1 at 11.  Dr. Brown signed a CMS-855I and another CMS-855R on July 1, 2019.  CMS Ex. 1 at 17-79.  The MAC rejected the applications on July 24, 2019.  CMS Ex. 1 at 82-85.

Petitioner submitted a new enrollment application received by the MAC on about August 7, 2019.  The application was not processed at Petitioner’s request.  CMS Ex. 1 at 123, 129. 

On November 5, 2019, the MAC received a new enrollment application from Petitioner.  CMS Ex. 1 at 2.  The application was approved by the MAC on December 11, 2019, and Petitioner was granted billing privileges effective October 6, 2019.  CMS Ex. 1 at 165-67.  

I accept as true for purposes of summary judgment, that Petitioner was created, and staff began seeing Medicare-eligible beneficiaries on or about March 1, 2019 as alleged by Petitioner.  CMS Ex. 1 at 168; P. Br.

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b.  Analysis

In March 2019, Dr. Brown decided to form her solely owned practice group (Petitioner), brought on a new doctor; and continued to see patients.  According to Dr. Brown, because the MAC did not enroll Petitioner in Medicare and grant Petitioner billing privileges effective March 1, 2019, claims were submitted to CMS using Dr. Brown’s National Provider Identifier (NPI).  When CMS then sent the claims to Blue Cross Blue Shield (BCBS), the secondary payor, BCBS refused to pay the claims because they listed Dr. Brown’s individual NPI rather than Petitioner’s NPI.  Dr. Brown’s allegations are accepted as true for purposes of summary judgment.  Dr. Brown requests that Petitioner be enrolled and granted billing privileges effective March 1, 2019, so that secondary claims can be resubmitted to BCBS for payment.  Dr. Brown argues that Medicare informed her it was okay to continue seeing patients while waiting for Petitioner to be enrolled as a group practice with billing privileges, an assertion that I accept as true for purposes of summary judgment.  However, Dr. Brown does not assert that any MAC representative told her that BCBS would pay secondary claims.  P. Br.; CMS Ex. 1 at 168.  Petitioner’s request for an effective date of billing privileges of March 1, 2019, cannot be granted.

The regulations controlling the effective date of enrollment of physicians, nonphysician practitioners, and physician or nonphysician practice groups are clear and controlling.  The effective date of enrollment in Medicare of physicians, nonphysician practitioners, and physician and nonphysician practitioner organizations is governed by 42 C.F.R. § 424.520(d).  The effective date of enrollment and billing privileges for a physician or nonphysician practitioner or a physician or nonphysician practice group may only be the later of two dates:  (1) the date when the physician, nonphysician practitioner, or group filed an application for enrollment that was subsequently approved by a MAC charged with reviewing the application on behalf of CMS; or (2) the date when the physician first began providing services at a new practice location.  42 C.F.R. § 424.520(d). 

The date of filing of an enrollment application is the date on which the Medicare contractor receives a signed enrollment application that the MAC is able to process to approval.  42 C.F.R. § 424.510(d)(1); 73 Fed. Reg. 69,725, 69,769 (Nov. 19, 2008); Alexander C. Gatzimos, MD, JD, LLC, DAB No. 2730 at 1 (2016).  The burden is on Petitioner, not the government, to demonstrate that the MAC or CMS received the requisite enrollment forms and that Petitioner met all enrollment requirements.  42 C.F.R. § 424.545(c). 

An enrolled physician or nonphysician practitioner may retrospectively bill Medicare for services provided to Medicare-eligible beneficiaries up to 30 days prior to the effective date of enrollment, if circumstances precluded enrollment before the services were provided.  42 C.F.R. § 424.521(a)(1).

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Dr. Brown requests that Petitioner’s effective date of enrollment be changed so that Petitioner may bill for services delivered to Medicare-eligible beneficiaries beginning March 1, 2019.  RFH; P. Br.  However, it is undisputed that the MAC received the application it was able to process to completion on November 5, 2019.  Because the MAC’s receipt of the application is later than March 1, 2019, pursuant to 42 C.F.R. § 424.520(d), the date of receipt of the application by the MAC is the effective date of Petitioner’s enrollment in Medicare.  Pursuant to 42 C.F.R. § 424.521(a)(1), the period for retrospective billing, i.e., the earliest date of billing privileges, begins 30 days prior to the effective date of enrollment, and in this case, that period can begin no earlier than October 6, 2019. 

The regulations specifically provide that there is no right to request review of a MAC or CMS determination to reject an enrollment application.  42 C.F.R. § 424.525(d).  There is no regulation granting a right to review of a decision of the MAC to return or cease processing an application.  Therefore, the rejection of, or determination not to process Petitioner’s applications received by the MAC before November 5, 2019, are not subject to my review or a basis for the relief requested by Petitioner. 

Dr. Brown’s argument for billing privileges effective March 1, 2019, may be construed to be a request for equitable relief.  However, I have no authority to grant Petitioner equitable relief in the form of an earlier effective date of enrollment, even if I were inclined to do so.  US Ultrasound, DAB No. 2302 at 8 (2010).  I am bound to follow the Act and regulations and I have no authority to declare statutes or regulations invalid or ultra vires.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009).  Dr. Brown’s argument that she was told by a MAC representative that it was okay to submit claims for services to Medicare-eligible beneficiaries between about March 1, 2019 and October 6, 2019, may construed to be an argument that CMS should be estopped from denying billing privileges as early as March 1, 2019.  However, estoppel against the federal government, if available at all, is presumably unavailable absent “affirmative misconduct,” such as fraud, and no such allegation exists in this case.  See, e.g., Pac. Islander Council of Leaders, DAB No. 2091 at 12 (2007); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990).

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III.  Conclusion

For the foregoing reasons, Petitioner’s effective date of enrollment is November 5, 2019, with retrospective billing privileges beginning October 6, 2019.