Levan Atanelov, M.D., DAB CR6167 (2022)

DECISION

Petitioner, Levan Atanelov, M.D., challenges the determination of his effective date of enrollment as a biller to the Medicare program by Respondent, the Centers for Medicare & Medicaid Services (CMS), acting through its administrative contractor, Novitas Solutions (Novitas).  As explained herein, I affirm CMS’ effective date determination.

I.        Background

On August 17, 2020, Petitioner electronically filed an application to reassign his Medicare billing benefits to his practice, Fall Prevention And Stroke Rehabilitation Physician, L.L.C.  CMS Ex. 1.  Novitas advised Petitioner on August 20, 2020 that he needed to file an individual enrollment application to process his reassignment request.  CMS Ex. 2.  Petitioner submitted that individual enrollment application on August 21, 2020.  CMS Exs. 3-7.  Novitas requested additional information to process the individual application, CMS Ex. 8, and having received his responses, notified Petitioner on September 28, 2020 it had approved his initial enrollment application with an “effective

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date” of May 19, 2020.¹  CMS Ex. 12 at 1.  Petitioner sought reconsideration of the effective date determination, asking that his enrollment and reassignment be effective from March 1, 2020, the date he began seeing Medicare patients in the District of Columbia. CMS Ex. 13 at 3; CMS Ex. 14 at 2.²  In a reconsidered determination dated December 3, 2020, Novitas affirmed its effective date determination and clarified that the effective date for Petitioner’s enrollment and reassignment was August 17, 2020, and that Petitioner qualified to receive 90 days of retrospective billing because the COVID-19 pandemic constituted a Presidentially declared disaster.  CMS Ex. 15 at 1-3; see also 42 C.F.R. § 424.521(a)(1)(ii).

Petitioner timely filed a request for hearing in the Civil Remedies Division and I was designated to hear and decide this case.  On December 22, 2020, I issued an Acknowledgment and Prehearing Order (Pre-Hearing Order) requiring the parties to file arguments and supporting documents in a pre-hearing exchange.  Pre-Hearing Order ¶ 5.  CMS timely filed its Pre-Hearing Brief and Motion for Summary Judgment (CMS Br.) with 15 proposed exhibits (CMS Exs. 1-15).  Petitioner did not file an exchange as directed, but in response to an Order to Show Cause, filed an explanation for his delay and a responsive pleading on March 16, 2021.  DAB E-File Dkt. No. C-21-273, Doc. No. 8 (P. Br.).  I accepted Petitioner’s explanation for failing to timely file a pre-hearing exchange and discharged the Order to Show Cause.

II.       Admission of Exhibits

Petitioner did not object to CMS’s proposed exhibits.  I admit CMS Exhibits 1 through 15 into evidence.

III.     Decision on the Record

Neither party offered written direct testimony of a witness as part of its pre‑hearing exchange, meaning an in-person hearing is not necessary in this matter.  Pre‑Hearing Order ¶¶ 11-13; Civ. Remedies Div. P. §§ 16(b), 19(b).  I therefore decide this case on the record based on the parties’ written submissions and arguments.  Civ. Remedies Div. P. § 19(d).  CMS’s motion for summary judgment is denied as moot.

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IV.     Issue

Whether Novitas, acting on behalf of CMS, properly established August 17, 2020 as Petitioner’s effective date of enrollment for reassignment of his Medicare billing.

V.       Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2); see also Soc. Sec. Act (Act) § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

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

  A. Applicable Law

Petitioner participates in the Medicare program as a “supplier” of services.  Act § 1861(d); 42 C.F.R. § 498.2.  To receive Medicare payments for 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 a supplier’s owners and practice location; and (4) grant the supplier Medicare billing privileges.  42 C.F.R. § 424.502.  After a prospective supplier submits an approved Medicare enrollment application, CMS establishes an effective date for billing privileges and may permit retrospective billing pursuant to 42 C.F.R. § 424.521(a).

The effective date for billing privileges for suppliers like Petitioner 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).  The “date of filing” is the date that the Medicare contractor “receives” a signed enrollment application that the Medicare contractor processes to approval.  73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008); Donald Dolce, M.D., DAB No. 2685 at 8 (2016).

A Medicare beneficiary may assign the right to receive Medicare Part B benefits for covered medical services to an enrolled supplier who delivers those services.  Act § 1842(b)(3)(B)(ii) (42 U.S.C. § 1395u(b)(3)(B)(ii)); 42 C.F.R. § 424.55.  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).  To reassign Medicare benefits, a supplier must submit and obtain CMS’s approval of a reassignment application.  Gaurav Lakhanpal, MD, DAB No. 2951 at 1-2 (2019) (citing 71 Fed. Reg. 20,754, 20,756 (Apr. 21, 2006)).  CMS applies the effective date rules at 42 C.F.R. §§ 424.520(d) and 424.521(a)(1) to reassignments of

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Medicare benefits.  See Medicare Program Integrity Manual (MPIM) (CMS Pub. 100-08) §§ 15.5.20(E)(3), 15.17.

  B. Analysis

1. The effective date of Petitioner’s reassignment of Medicare billing privileges is August 17, 2020, as that is the date Novitas received the application it subsequently processed to approval.

Petitioner submitted a reassignment application received by Novitas on August 17, 2020 that the contractor ultimately processed to approval.  CMS Ex. 1.  The record before me reflects no receipt of an earlier application that Novitas subsequently approved.  August 17, 2020 is therefore the correct effective date of reassignment for Petitioner’s 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); MPIM §§ 15.5.20(E)(3), 15.17.

Consistent with 42 C.F.R. § 424.521(a)(1)(ii), Novitas also granted Petitioner retrospective billing beginning May 19, 2020, or 90 days before the effective date of reassignment.  CMS Ex. 12 at 1; 42 C.F.R. § 424.521(a)(1)(ii).³

2. I have no authority to consider Petitioner’s equitable arguments.

Petitioner does not claim to have filed a reassignment application before August 17, 2020.  He instead explains that he was under contract with the Autumn Lake Health Care nursing home system and began seeing Medicare patients at an additional Autumn Lake facility in Maryland on April 24, 2020 without realizing the patients he treated there were deemed patients under the District of Columbia’s Medicare program.  P. Br.  Petitioner points out that he applied for reassignment and enrollment as soon as he became aware of the issue and asks to be reimbursed, as a matter of fairness, for the services he rendered to Medicare beneficiaries during the COVID-19 pandemic.  Id.

Petitioner’s explanation is altogether sympathetic, and I am especially aware of his resolve and integrity in treating at-risk Medicare patients during a time of national crisis.  But Petitioner’s request to modify the reassignment effective date based on his lack of awareness of the need to apply for enrollment as a Medicare supplier for the District of Columbia has no basis in law and is instead a plea for equitable relief, which I do not have the authority to grant.  See, e.g., US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the [Administrative Law Judge (ALJ)] nor the Board is authorized to provide

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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 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 limited to review of CMS’s determination of the effective date of Petitioner’s reassignment application under 42 C.F.R. § 424.520(d).  As I have explained, Novitas properly determined the effective date of reassignment to be August 17, 2020, as that was the date Novitas received a reassignment application from Petitioner that it was able to successfully approve.  Novitas further granted Petitioner 90 days of retrospective billing, the maximum period permitted pursuant to 42 C.F.R. § 424.521(a)(1)(ii).  Petitioner has received the maximum period of reassigned billing privileges possible that could result from the reassignment application he filed on August 17, 2020.

VII.     Conclusion

For the foregoing reasons, I affirm CMS’s determination of the effective date of Petitioner’s reassignment of Medicare billing privileges to be August 17, 2020, with retrospective billing permitted from May 19, 2020.

Endnotes

¹ As I have observed in other decisions concerning effective date determinations, CMS’s contractors persist in mistakenly identifying the retrospective billing date as the effective date; Novitas is no exception.  The regulations distinguish between the effective date and the date from which retrospective billing is permitted.  Compare 42 C.F.R. §§ 424.520(d), with 424.521(a)(1).  Consistent with the regulations, I use the term “effective date” in this decision to refer to the date Novitas received an application from Petitioner it eventually approved, not the date from which it authorized retrospective billing.

² In briefing before me, however, Petitioner asserts he sought an effective date of April 24, 2020.  P. Br.

³ This regulation allows up to 90 days of retrospective billing, as opposed to the more typical 30 days, when a Presidentially declared disaster under the Stafford Act precludes a supplier’s enrollment in advance of providing services to Medicare beneficiaries.  42 C.F.R. § 424.521(a)(1)(ii).  Novitas granted Petitioner the maximum 90 days of retrospective billing permitted by the regulation.