TMK Enterprises, DAB CR5901 (2021)

DECISION

The effective date of Medicare enrollment and billing privileges of Petitioner, TMK EnterprisesTeresa Kendrick, NP, requested the hearing on behalf of her practice group, TMK Enterprises. is April 3, 2020.  The effective date of the reassignment of benefits from Teresa Parks to Petitioner is also April 3, 2020.  The period for retrospective billing began January 4, 2020.

I. Background and Procedural History

Novitas Solutions, a Medicare administrative contractor (MAC), notified Petitioner by letters dated April 13, 2020, that Petitioner’s application to enroll in Medicare and the application of Teresa Parks to reassign to Petitioner her right to receive payment from Medicare, were approved.  The letters list the effective date of the enrollment and

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reassignment as January 5, 2020.The following discussion clarifies that January 4, 2020, is the first day of a 90-day period for retrospective billing and the effective date of Medicare enrollment of Petitioner is April 3, 2020.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 15-16, 25-26.

On April 13, 2020, Petitioner requested a reconsidered determination.  Petitioner requested that its enrollment and the reassignment be retroactive to December 1, 2019.  CMS Ex. 1 at 11.  On July 9, 2020, the MAC issued a reconsidered determination.  The MAC determined that the effective date of Petitioner’s enrollment and the reassignment of billing privileges was April 3, 2020, with retrospective billing privileges beginning January 4, 2020.  CMS Ex. 1 at 3.

Petitioner requested a hearing before an administrative law judge (ALJ) on July 25, 2020 (RFH).  This case was assigned to me on July 31, 2020 and an Acknowledgment and Prehearing Order (Prehearing Order) was issued at my direction.

On August 31, 2020, CMS filed a motion for summary judgment (CMS Br.) and CMS Ex. 1.  On October 1, 2020, Petitioner filed a brief (P. Br.) in response to the CMS motion.  On October 19, 2020, CMS waived its right to file a reply.  Petitioner has not objected to my consideration of CMS Ex. 1, which is 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 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.

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Act §§ 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 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 of a Presidentially declared disaster pursuant to 42 U.S.C. §§ 5121-5207.  42 C.F.R. § 424.521(2).

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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 April 3, 2020, with retrospective billing privileges beginning January 4, 2020.

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.  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).

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2.  Pursuant to 42 C.F.R. § 424.520(d), Petitioner’s effective date of Medicare enrollment is April 3, 2020, the date of receipt by the MAC of Petitioner’s Medicare enrollment application (CMS-855B).

3.  Pursuant to 42 C.F.R. § 424.521(a)(2), Petitioner is authorized to bill Medicare for services provided to Medicare-eligible beneficiaries up to 90 days prior to the effective date of its Medicare enrollment, that is beginning on January 4, 2020, due to the Presidential declaration pursuant to  42 U.S.C. §§ 5121-5207.

a.  Undisputed Facts

It is not disputed that on April 3, 2020, the MAC received an application to enroll Petitioner in Medicare (CMS-855B).  CMS Ex. 1 at 20, 33; RFH; P. Br.  The MAC also received on April 3, 2020, an application to reassign the Medicare billing privileges (CMS-855R) of Teresa Parks, Petitioner’s sole owner, to Petitioner.  CMS Ex. 1 at 31; RFH; P. Br.  The applications were approved by the MAC on April 13, 2020, and the MAC identified January 5, 2020, as the effective date.  CMS Ex. 1 at 15-16, 25-26.

On July 9, 2020, the MAC issued a reconsidered determination.  The reconsidered determination concluded that the effective date of Petitioner’s Medicare enrollment and billing privileges is April 3, 2020, the date the MAC received the Petitioner’s enrollment application.  The reconsidered determination also concluded that Petitioner was entitled to a 90-day period for retrospective billing beginning January 4, 2020.  CMS Ex. 1 at 3.

I accept as true for purposes of summary judgment, that Petitioner was created by Teresa Parks during January 2020.  I also accept that between December 1, 2019 and January 4, 2020, Teresa Parks treated some Medicare-eligible beneficiaries.  CMS Ex. 1 at 24; RFH; P. Br.

b.  Analysis

Petitioner requests that it be permitted to bill Medicare for services rendered to Medicare-eligible beneficiaries by Teresa Park beginning December 1, 2019.  RFH, P. Br.  I have no authority to grant Petitioner’s request.

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

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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).

I accept as true for purposes of summary judgment that Teresa Parks treated Medicare-eligible beneficiaries between December 1, 2019 and January 4, 2020.  However, there is no dispute that on April 3, 2020, the MAC received the CMS-855B and CMS-855R applications it processed to completion.  Accordingly, the effective dates of Petitioner’s enrollment in Medicare and billing privileges and the reassignment by Teresa Parks of her billing privileges to Petitioner can be no earlier than April 3, 2020.  Pursuant to the 42 C.F.R. § 424.520(d) it is the later of the date that the MAC received the application it processed to approval or the date on which services were first provided to patients.  In this case, the later date is April 3, 2020, and that is the effective date of Petitioner’s enrollment and the reassignment.

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, or up to 90 days prior only in case of a Presidentially declared disaster pursuant to 42 U.S.C. §§ 5121-5207, the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act).  42 C.F.R. §§ 424.521(a)(1), (2).  There is no dispute that President Donald J. Trump issued an emergency declaration under the Stafford Act on March 13, 2020, a month prior to the initial determination in Petitioner’s case.  On reconsideration the MAC provided for a period for retrospective billing beginning on January 4, 2020.  There is no reason to disturb the MAC’s determination to grant 90 days for retrospective billing in this case.

Petitioner argues that the physician Teresa Parks worked for making hospital rounds stopped billing for Ms. Parks’ services and paying her a percentage of what Medicare paid.  The physician failed to tell Ms. Parks that he was no longer paying her until January 2020, when she asked for payment.  Therefore, in January 2020, Ms. Parks began the process of starting Petitioner so that she could bill for her own services.  Petitioner asserts that the process was slowed by the pandemic.  RFH; P. Br.  Although I accept Petitioner’s explanation as true for purposes of summary judgment, Petitioner does not

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deny that no enrollment application was submitted before the one received by the MAC on April 3, 2020.  As already explained, April 3, 2020, the date the MAC received Petitioner’s enrollment application, is later than December 1, 2019.  Therefore, pursuant to 42 C.F.R. § 424.520(d), April 3, 2020 must be the effective date of Petitioner’s enrollment in Medicare.  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). As the Board stated in Sentinel Medical Laboratories, Inc.,

It is well established that administrative forums, such as this Board and the Department’s ALJs, do not have the authority to ignore unambiguous statutes or regulations on the basis that they are unconstitutional.  A legislative rule is binding on the agency that issues it.  1 Kenneth Culp Davis and Richard J. Pierce, Jr., Administrative Law Treatise, § 6.5 (3rd ed. 1994), (citing U.S. v. Nixon, 418 U.S. 683 (1974) (where the court noted that the executive branch was bound by the terms of a regulation it had issued, even though it was within its power to change that regulation).  Federal courts have refused “to recognize in administrative officers any inherent power to nullify legislative [or executive] enactments because of personal belief that they contravene the [C]onstitution.” Gibas v. Saginaw Mining Co., 748 F.2d 1112, at 1117 (6th Cir. 1984) (citation omitted).  Thus, courts have noted that challenges to the constitutionality of an agency regulation lie outside the cognizance of that agency, and that generally, an ALJ is bound by the regulations promulgated by his administrative agency.  Howard v. FAA, 17 F.3d 1213, 1218 (9th Cir. 1994); Stieberger v. Heckler, 615 F.Supp. 1315, 1386 (S.D.N.Y. 1985), citing D’Amico v. Schweiker, 698 F.2d 903 (7th Cir. 1983).

Sentinel Med. Labs., Inc., DAB No. 1762 at 9 (2001), aff’d sub nom., Teitelbaum v. Health Care Fin. Admin., 32 F. App’x 865 (9th Cir. 2002).

Petitioner’s concern about financial hardship for Teresa Parks because she is unable to bill for services to Medicare-eligible beneficiaries from December 1, 2019 to January 4, 2020, is understandable.  RFH; P. Br.  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).

III. Conclusion

For the foregoing reasons, the effective date of Petitioner’s Medicare enrollment and billing privileges and the reassignment of Teresa Parks’ Medicare billing privileges to Petitioner is April 3, 2020, with a period for retrospective billing beginning January 4, 2020.