Dimitrios N. Minadakis, PA-C, et. al., DAB CR5879 (2021)

DECISION

National Government Services (NGS), an administrative contractor for Respondent, the Centers for Medicare & Medicaid Services (CMS), granted Medicare billing privileges to Petitioners effective November 10, 2017, with retrospective billing permitted from October 11, 2017.  Petitioners dispute this effective date determination.  As explained herein, I find NGS correctly determined Petitioners' individual Medicare enrollments and associated billing privileges became effective November 10, 2017.  I affirm CMS's effective date determination.

I. Background

Petitioners are 23 medical professionalsEach Petitioner is identified by name, NPI/PTAN, and the docket number of their individually filed requests for hearing in the appendix attached to the end of this decision. employed by CentraCare Heath (CentraCare), a multi-specialty group practice that participates in the Medicare program.  CMS Exhibits (Exs.) 29-51.  On August 11, 2017, CentraCare submitted a CMS-855B group enrollment application to add a new practice location in Minnesota, St. Cloud Medical Group South.  CMS Ex. 25 at 10, 17.  By letter dated September 21, 2017, NGS notified CentraCare

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that the contractor had approved CentraCare to bill Medicare from this location as of September 1, 2017.  CMS Ex. 28.

CentraCare sent NGS six individual enrollment applications and 17 reassignment applications on behalf of its employees (Petitioners) on November 10, 2017.  CMS Exs. 29-51.  NGS approved each application and determined their effective date of enrollment and/or reassignment to be November 10, 2017, with 30 days of retrospective billing permitted for all Petitioners from October 11, 2017.  CMS Exs. 2- 24.NGS's initial and reconsidered determinations mistakenly identify October 11, 2017 as the "group member effective date" of Petitioners reassigned or initial billing privileges.  CMS Exs. 2-24; 75-97.  The regulations distinguish between the effective date and the date from which retrospective billing is permitted.  See 42 C.F.R. §§ 424.520(d), 424.521(a)(1).  I infer that NGS applied the maximum 30 days of retrospective billing permitted in this situation, meaning NGS established November 10, 2017 as the actual effective date within the meaning of the regulations.  Consistent with those regulations, I use the term "effective date" in this decision to refer to the date NGS received an application from each Petitioner it eventually approved, not the earlier date from which it afforded retrospective billing.  Petitioners asked NGS to reconsider its effective date determinations.  CMS Exs. 52-74.  Upon reconsideration, NGS affirmed its effective date determinations.  CMS Exs. 75-97.

On March 23, 2018, the Civil Remedies Division of the Departmental Appeals Board received 23 requests for hearing for each Petitioner, and I was designated to hear and decide their cases.  On April 6, 2018, I issued an Acknowledgment and Pre‑Hearing Order (Pre-Hearing Order) that required each party to file a pre-hearing exchange and supporting documents.  Pre-Hearing Order ¶ 4.  Without objection, I also issued an order on April 16, 2018 consolidating Petitioners' separately filed hearing requests under one docket number, C-18-746.  CMS subsequently filed a Motion for Summary Judgment and Pre-Hearing Brief (CMS Br.), along with 97 exhibits (CMS Exs. 1-97).  Petitioners filed a pre-hearing exchange (P. Br.) and one exhibit (P. Ex. 1) on June 15, 2018.

II. Decision on the Written Record and Admission of Exhibits

Neither party filed objections to the opposing party's proposed exhibits.  I therefore admit CMS Exs. 1-97 and P. Ex. 1 into evidence.  CMS did not request to cross-examine the witness identified by Petitioners.  Consequently, I will not hold an in-person hearing in this matter and issue this decision based on the written record.  Pre-Hearing Order ¶¶ 8-10; Civ. Remedies Div. P. § 19(d).  CMS's motion for summary judgment is denied as moot.

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III. Issue

The issue in this case is whether NGS, acting on behalf of CMS as the Medicare administrative contractor, properly established November 10, 2017 as the effective date of enrollment and reassignment for Petitioners' Medicare billing privileges.

IV. Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2).

V. Findings of Fact, Conclusions of Law, and Analysis

A.  Applicable Law

The Social Security Act (Act) authorizes the Secretary of Health and Human Services to promulgate regulations governing the enrollment process for providers and suppliers.  Act §§ 1102, 1866(j); 42 U.S.C. §§ 1302, 1395cc(j).  "[S]upplier[s]," like Petitioners, are defined as "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.  Act § 1861(d) (42 U.S.C. § 1395x(d)); see also Act § 1861(u) (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 regulations define "Enrollment" as "the process that Medicare uses to establish eligibility to submit claims for Medicare‑covered items and services."  42 C.F.R. § 424.502.  A supplier seeking billing privileges under the Medicare program must "submit enrollment information on the applicable enrollment application.  Once the provider or supplier successfully completes the enrollment process . . . , CMS enrolls the provider or supplier into the Medicare program."  42 C.F.R. § 424.510(a)(1).  CMS then establishes an effective date for billing privileges under the requirements stated in 42 C.F.R. § 424.520(d) and may permit retrospective billing pursuant to 42 C.F.R. § 424.521(a).

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" 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" a signed 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).  The regulations allow suppliers to "retrospectively bill" Medicare, meaning CMS permits a supplier to bill Medicare for services occurring up to thirty days before the effective date of enrollment, if certain circumstances apply.  42 C.F.R § 424.521(a)(1).

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For Medicare Part B claims, a beneficiary may assign his or her benefits to an enrolled physician or non‑physician supplier providing services to that beneficiary.  Act § 1842(b)(3)(B)(ii) (42 U.S.C. § 1395u(b)(3)(B)(ii)).  In certain circumstances, a supplier who has received an assignment of benefits may reassign those benefits to an employer, or to an individual or entity with which the supplier has a contractual arrangement.  Act § 1842(b)(6) (42 U.S.C. § 1395u(b)(6)); 42 C.F.R. § 424.80(b)(1)‑(2).

CMS applies the effective date rules at 42 C.F.R. §§ 424.520(d) and 424.521(a)(1) to reassignment of Medicare benefits.  See Medicare Program Integrity Manual (MPIM) (CMS Pub. 100-08) §§ 15.5.20(E)(3), 15.17.  In order to reassign Medicare benefits, a physician must submit and obtain CMS's approval of a reassignment application, known as a form CMS-855R.  Gaurav Lakhanpal, MD, DAB No. 2951, at 1-2 (2019) (citing 71 Fed. Reg. 20,754, 20,756 (Apr. 21, 2006)).

The determination of the effective date of a supplier's Medicare enrollment is an "initial determination" subject to administrative review under 42 C.F.R. Part 498.  See 42 C.F.R. §§ 498.3(a)(1), (b)(15); Victor Alvarez, M.D., DAB No. 2325 at 3 (2010).

B.  Analysis

1. The effective date of the Petitioners' Medicare enrollment and reassignment applications is November 10, 2017, as that is the date NGS received each application it subsequently processed to approval.

On November 10, 2017, NGS received six enrollment applications (CMS Exs. 29, 36-38, 50-51 at 2, 9-11, 23-24) and 17 reassignment applications (CMS Exs. 3-8,12-22, 30-35, 39-49) from Petitioners that it ultimately processed to approval.  The record before me reflects no earlier application for individual enrollment or reassignment submitted by Petitioners that NGS subsequently approved.

Petitioners argue that they were already enrolled prior to CentraCare's acquisition of the Medical Group and the Clinics, that they did not "simultaneously or retroactively terminate the Suppliers' enrollment in Medicare," and that as a result, their "respective effective billing dates are the later of:  (a) September 1, 2017; or (b) the first date each Supplier provided services at a Clinic after CentraCare acquired the Medical Group."  P. Br. at 4.

However, the Board has held that whether the reassignment application is accompanied by an initial application for enrollment or is submitted as a "stand-alone" form, the effective date of reassignment is the "later of the date of filing [of the reassignment application] or the date the reassignor first began furnishing services at the new location."

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Yakup Akyol, M.D., DAB No. 3017 at 5 (2020); see also Gaurav Lakhanpal, MD, DAB No. 2951 at 6 (2019); MPIM, CMS Pub. 100-08, Ch. 15, § 15.5.20(E)(3).

Therefore, November 10, 2017, the date NGS received the 23 applications it subsequently approved, is the correct effective date of enrollment and reassignment for Petitioners' Medicare billing privileges.  Urology Grp. of NJ, LLC, DAB No. 2860 at 7-9 (2018); Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017); see also MPIM §§ 15.5.20(E)(3), 15.17.

2.  I have no authority to consider Petitioners' equitable arguments for an earlier effective date.

Petitioners suggest that a signature error with CentraCare's CMS-855B group enrollment application caused the submission of Petitioners' subsequent enrollment and reassignment applications in October 2017 to be delayed.  P. Br. at 2; P. Ex. 1 at 2.  Petitioners request that they not be required to forego payment from September 1, 2017 to October 11, 2017 because they continued to service the community while waiting for Medicare approval.  P. Br. at 3.

I am sympathetic to Petitioners' situation and applaud their desire to provide continuity of care to Medicare beneficiaries while standing up a new practice location.  However, it is not apparent from Petitioners' argument that CMS or its contractor was responsible for the delay in submitting their enrollment and reassignment applications beyond the 30-day grace period that arises where retrospective billing is permitted and applied, as here.  In any event, I have no authority to grant Petitioners equitable relief, whatever the merit of their argument.  See, e.g., US Ultrasound, DAB No. 2302 at 8 (2010) ("Neither the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements."); Pepper Hill Nursing & Rehab. Ctr., LLC, DAB No. 2395 at 11 (2011) (holding that the ALJ and Board were not authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements).

My jurisdiction is instead limited to review of CMS's determination of the effective date of Petitioners' enrollment and reassignment applications, which is governed by 42 C.F.R. § 424.520(d).  As I have explained, pursuant to that regulation, NGS properly determined Petitioners' effective date of enrollment or reassignment to be November 10, 2017, as that is the date NGS received applications from Petitioners that it was able to subsequently process to approval.

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VI. Conclusion

I affirm CMS's determination that Petitioners' effective date for Medicare billing privileges is November 10, 2017, with retrospective billing permitted from October 11, 2017.

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APPENDIX