Timothy Ekhlassi, M.D., M.P.H., DAB CR5969 (2021)

DECISION

Petitioner, Timothy Ekhlassi, M.D., M.P.H., is a physician, practicing in Bellingham, Washington.  He applied to participate in the Medicare program as a supplier of services and to reassign his benefits to a physician group practice.  The Centers for Medicare & Medicaid Services (CMS) granted his applications, with an effective date of March 4, 2019, and a retrospective billing date of February 2, 2019.  Petitioner now challenges that effective date.

Because he filed his subsequently-approved enrollment application on March 4, 2019, I find that March 4 is the correct effective date for Petitioner’s enrollment.

Background

In a notice letter, dated April 16, 2019, the Medicare contractor, Noridian Healthcare Solutions, advised Petitioner Ekhlassi that it approved his Medicare enrollment application and his application to reassign benefits with an “effective date” of February 2, 2019.  CMS Ex. 3.  In fact, the contractor was granting Petitioner a retrospective billing date of February 2, 2019; the effective date of Petitioner’s enrollment is March 4, 2019 (see discussion below).

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Petitioner requested reconsideration, asking for an effective date of December 1, 2018.  Petitioner argued that he had shown due diligence in completing the application process and had, in fact, submitted a complete application on November 15, 2018, which the contractor rejected in error.  CMS Ex. 2 at 5-6.

In a reconsidered determination, dated July 18, 2019, the contractor affirmed the initial determination.  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 4, 5 (¶¶ 4(c)(iv), 8) (Sept. 20, 2019).  I may therefore decide this case based on the written record, without considering whether the standards for summary judgment are satisfied.

CMS submits its motion and brief (CMS Br.) with five exhibits (CMS Exs. 1-5).  Petitioner relies on its earlier submissions (the requests for reconsideration and for hearing).  In the absence of any objections, I admit into evidence CMS Exs. 1-5.  See Acknowledgment and Pre-hearing Order at 5 (¶ 7).

Discussion

On March 4, 2019, Petitioner filed his subsequently-approved enrollment applications, and March 4, 2019 is therefore the effective date of his enrollment.  42 C.F.R. § 424.520(d).I make this one finding of fact/conclusion of law.

Enrollment.  Petitioner Ekhlassi 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.  Act § 1834(j)(1)(A); 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 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.CMS’s electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).  When CMS determines that a

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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.  For a physician, the effective date for 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 physician meets all program requirements, CMS may allow him 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).

Some Medicare contractors have created confusion because they conflate the effective date with the retrospective billing date, as the contractor initially did in this case.  CMS Ex. 3.  On reconsideration, it corrected the error.  CMS Ex. 1 at 3.  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.

Petitioner’s enrollment.  Here, on March 4, 2019, Petitioner filed, via the PECOS system, his Medicare enrollment application (CMS-855I) and his application to reassign benefits (CMS-855R), which the contractor subsequently approved.  CMS Ex. 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.  Thus, pursuant to section 424.520(d), the date Petitioner filed his subsequently-approved enrollment application – March 4, 2019 – 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 Goffney v. Azar, No. CV 17-8032 MRW (C.D. Cal. Sept. 25, 2019).  Pursuant to its authority under section 424.521(a)(1), CMS has allowed Petitioner to bill 30 days retrospectively, so his retrospective billing date is February 2, 2019.

The rejected applications.  Petitioner, however, points out that he submitted applications on November 15, 2018, which, Petitioner maintains, the contractor erroneously rejected.  The regulations authorize the contractor to reject an application if the supplier fails to furnish complete information within 30 days of the date requested.  42 C.F.R. § 424.525(a)(1).  Here, the contractor deemed Petitioner’s applications insufficient because signatures were missing.  In an email sent January 25, 2019, the contractor directed Petitioner to submit the signatures within 30 calendar days.  The email warned that “we may reject your application(s) if you do not furnish complete information within 30 calendar days of the initial request.”  CMS Ex. 5 at 1.

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Petitioner maintains that he timely submitted the signatures.  Nevertheless, on February 25, 2019, the contractor rejected the enrollment applications, having determined that the electronic signatures were not completed.  CMS Ex. 4.

I have no authority to review a rejected application.  42 C.F.R. § 424.525(d); see James Shepard, M.D., DAB No. 2793 at 8 (2017).  Nor may I grant Petitioner an earlier effective date based on any equitable or policy arguments.  Sokoloff, DAB No. 2972 at 9.

Conclusion

Because Petitioner filed his subsequently-approved enrollment applications on March 4, 2019, March 4 is his effective date of enrollment.