Kara Geno, DAB CR6172 (2022)

DECISION

Palmetto GBA (Palmetto), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), determined that Kara Geno (Petitioner) reassigned her Medicare billing privileges to TwelveStone Infusion Centers, LLC (TwelveStone), effective November 8, 2019.  Palmetto also determined that Petitioner could submit claims for payment for services performed or delivered beginning October 9, 2019.¹  Palmetto affirmed the effective date on reconsideration, and Petitioner appealed.  Because November 8, 2019 is the earliest date Palmetto received an application from Petitioner that it was able to process to approval, Palmetto correctly determined that Petitioner’s reassignment of her Medicare billing privileges became effective November 8, 2019.  Therefore, I affirm Palmetto’s effective date determination.

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I.   Background

Petitioner is a nurse practitioner licensed to practice in Tennessee.  See, e.g., P. Exhibit (Ex.) II.  On November 8, 2019, Palmetto received an application to reassign Petitioner’s right to receive Medicare payments to TwelveStone.  CMS Ex. 3 at 1.  Palmetto processed Petitioner’s application and approved the reassignment with an “effective date” of October 9, 2019.  CMS Ex. 2 at 1.

Petitioner requested reconsideration.  CMS Ex. 1.  By letter dated October 26, 2020, Palmetto issued an unfavorable reconsidered determination upholding the effective date of October 9, 2019.  Docket Entry #1a in the Departmental Appeals Board (DAB) Electronic Filing System (E-File).

Petitioner timely requested a hearing and the case was assigned to me for a hearing and decision.  On December 4, 2020, my office acknowledged receipt of Petitioner’s hearing request and provided a copy of my Standing Prehearing Order (Prehearing Order).

In accordance with my Prehearing Order, CMS filed a Motion for Summary Disposition, Memorandum in Support, and Prehearing Exchange (CMS Br.) and three proposed exhibits (CMS Exs. 1‑3).  Petitioner filed a Prehearing Exchange (P. Br.) and three proposed exhibits (P. Exs. I-III).  Neither party objected to the exhibits offered by the opposing party.  Therefore, in the absence of objection, I admit CMS Exs. 1-3 and P. Exs. I-III.

Neither CMS nor Petitioner offered the written direct testimony of any witness as part of the prehearing exchange.  As I informed the parties in my Prehearing Order, “[a]n in‑person hearing to cross-examine witnesses will be necessary only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine.”  Prehearing Order ¶ 10.  Consequently, an in-person hearing is not required, and I issue this decision based on the written record, without regard to whether the standards for summary judgment are met.  Prehearing Order ¶¶ 8-11; CRDP § 19(d).  I deny CMS’s motion for summary disposition as moot.

II.   Issue

The issue in this case is whether Palmetto, acting on behalf of CMS, properly established that Petitioner’s effective date of Medicare enrollment and reassignment of billing privileges was November 8, 2019, with retrospective billing permitted beginning October 9, 2019.

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III.   Jurisdiction

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

IV.   Discussion

A.   Applicable Legal Authority

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)).  A “supplier” is “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 “Enroll/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 provider or 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).  CMS then establishes an effective date for billing privileges consistent with 42 C.F.R. § 424.520 and may permit retrospective billing as provided in 42 C.F.R. § 424.521.

The Act and regulations limit who may receive Medicare payments due to a supplier of services and also provide for reassignment of those rights.  Act §§ 1815(c) and 1842(b)(6) (42 U.S.C. §§ 1395g(c) and 1395u(b)(6)); 42 C.F.R. § 424.70(a).  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)(3) (42 U.S.C. § 1395u(b)(3)); 42 C.F.R. § 424.80(b)(1)-(2).

At the time Petitioner submitted her reassignment application, relevant CMS guidance was published in Chapter 15 of the Medicare Program Integrity Manual (MPIM), CMS

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Pub. 100‑08.²  The MPIM provisions in effect at the time directed non-physician practitioners, such as Petitioner, who wished to reassign benefits to an eligible entity, to submit an enrollment application using Form CMS‑855R.  MPIM, Ch. 15, § 15.5.20.A.  Further, the MPIM instructed contractors that when a Form CMS‑855R is submitted as a “stand alone” form (i.e. where an enrolled practitioner joins a new group practice), “the effective date of the enrollment and the reassignment shall be consistent with the 30‑day rule.”  MPIM § 15.5.20.E.3.  Under the “30‑day rule,” CMS contractors calculate the effective date based on “the later of the date of filing or the date the reassignor first began furnishing services at the new location.”  Id.; see also 42 C.F.R. § 424.520(d).³  Suppliers have the right to appeal an initial determination regarding the effective date.  42 C.F.R. § 498.5(l)(1); see also 42 C.F.R. § 498.22(a).

B.   Findings of Fact and Conclusions of Law⁴

1. On November 8, 2019, Palmetto received Petitioner’s application to reassign her right to receive Medicare payments; Palmetto later approved that application.

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2. The effective date for Petitioner’s Medicare billing privileges is November 8, 2019, with retrospective billing privileges effective October 9, 2019.

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).  A reassignment application is an “enrollment application” within the meaning of the regulation.  Lakhanpal, DAB No. 2951 at 5 n.5.

Palmetto received a reassignment application from Petitioner on November 8, 2019.  CMS Ex. 3 at 1.  Palmetto processed the application to completion, approving the application with an “effective date” of October 9, 2019.  CMS Ex. 2 at 1.  As explained above, under then-current regulations, October 9, 2019 was the date from which retrospective billing was permitted.  Accordingly, as required by regulation, the effective date of Petitioner’s reassignment of her right to receive Medicare payments is November 8, 2019, with retrospective billing privileges effective October 9, 2019.

Petitioner argues that her reassignment should be effective September 1, 2019, which she represents is when she was first employed by TwelveStone.  P. Br. at 1.  Petitioner further argues that Palmetto agreed that TwelveStone may bill Medicare for Petitioner’s services effective September 1, 2019.  Id. at 2.  As I explain in the following section of this decision, these arguments are essentially equitable in nature.  As such, they do not provide a basis to change Petitioner’s effective date of reassignment.

3. I do not have authority to grant equitable relief.

Petitioner argues that an email from Palmetto proves that CMS agreed to set September 1, 2019 as Petitioner’s effective date of reassignment.  P. Br. at 2.  I infer that Petitioner is relying on P. Ex. I as support for this argument.  The exhibit is a copy of an email from a Palmetto manager that states, “CMS advised Palmetto on 08/17/2020 that timeliness should be waived and we should process the reconsideration within 90 days.”  P. Ex. I at 1.  My understanding of this email differs from Petitioner’s.

Palmetto issued the initial determination setting the effective date of Petitioner’s reassignment in a letter dated December 19, 2019.  CMS Ex. 2 at 1.  In a letter also dated December 19, 2019, Petitioner requested reconsideration.  CMS Ex. 1.  By contrast, the first email in the thread in P. Ex. I is dated October 1, 2020, that is, over 10 months later.  The basis for this delay is not fully explained in the record.  However, CMS states in its brief that Petitioner and CMS disputed whether Petitioner’s reconsideration request was properly signed.  CMS Br. at 2 n.3.  CMS concludes that it “eventually decided that the

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[reconsideration] request . . . was effective and timely.”  Id.  Reading the Palmetto email in light of the explanation in CMS’s brief, I understand the email to mean that CMS instructed Palmetto to treat Petitioner’s reconsideration request as timely filed notwithstanding the dispute regarding who was required to sign the reconsideration request.  Read that way, the email does not convey any information about the effective date of Petitioner’s application to reassign her billing privileges.

But even if, as Petitioner argues, the email could be read to imply that Petitioner would be granted an earlier effective date, this would not lead to a different result.  If Palmetto had implied that Petitioner would be granted an earlier effective date (contrary to the applicable regulations), Petitioner’s attempt to enforce Palmetto’s implied promise would rely on the doctrine of equitable estoppel.  However, as appellate decisions of the DAB have recognized, equitable estoppel will not lie against a government entity absent some type of affirmative misconduct.  See, e.g., Richard Weinberger, M.D. and Barbara Vizy, M.D., DAB No. 2823 at 19 (2017) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 419-21 (1990)).  As the decision in Weinberger & Vizy emphasized, “affirmative misconduct appears to require something more than failing to provide accurate information or negligently giving wrong advice.”  DAB No. 2823 at 19 (internal quotation marks and citations omitted).  Thus, despite the fact that Palmetto’s email may be open to more than one interpretation, such a lack of clarity might support an inference that Palmetto staff negligently gave wrong advice, but not that they committed affirmative misconduct.  Therefore, I find no basis to overturn Palmetto’s effective date determination based on equitable estoppel.

In her reconsideration request, Petitioner stated that she started treating Medicare patients on September 1, 2019 “in good faith in hopes that her Medicare reassignment would be back dated to when she originally started.”  CMS Ex. 1.  This may be intended to argue that Petitioner (and her employer) will be deprived of compensation for covered services that they provided in good faith if Petitioner is unable to bill for dates of service between September 1, 2019 and October 9, 2019.  However, concepts such as unjust enrichment and forfeiture sound in equity.  And, as is true of the doctrine of equitable estoppel, an administrative law judge is not authorized to provide equitable relief by reimbursing or enrolling a supplier that does not meet statutory or regulatory requirements.  US Ultrasound, DAB No. 2302 at 8 (2010) (citing Regency on the Lake, DAB No. 2205 (2008)).

Finally, to the extent Petitioner’s argument is that I should grant her an earlier effective date based on principles of fairness, such general appeals to equity are also not a basis to overturn Palmetto’s determination in this case.  Cent. Kan. Cancer Inst., DAB No. 2749, at 10 (2016), appeal dismissed, Cent. Kan. Cancer Inst. v. Dep’t of Health & Human Servs., No. 2:17-cv-02012 (D. Kan. June 2, 2017) (The DAB “is bound by the regulations, and may not choose to overturn the agency’s lawful use of its regulatory authority based on principles of equity.”).

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V.   Conclusion

I affirm Palmetto’s determination that Petitioner reassigned her right to receive Medicare payments to TwelveStone effective November 8, 2019, with retrospective billing privileges beginning October 9, 2019.

Endnotes

¹ Palmetto erroneously characterized Petitioner’s effective date of enrollment and reassignment of billing privileges as October 9, 2019.  CMS Ex. 2 at 1.  In fact, under the regulations in effect at the time, October 9, 2019 was Petitioner’s retrospective billing date.  42 C.F.R. § 424.521(a)(1)(i).

² Effective January 1, 2022, CMS reorganized the MPIM.  See Transmittal R11154PI, https://www.cms.gov/files/document/r11154PI.pdf (last visited September 2, 2022).  Currently, CMS guidance regarding supplier enrollment appears in Chapter 10 of the MPIM.

³ CMS added section 15.5.20.E.3 to the MPIM by transmittal R676PI, which was effective December 19, 2016.  See https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/2016-Transmittals-Items/R676PI.html (last visited September 2, 2022).  In light of the Supreme Court’s decision in Azar v. Allina Health Services, 139 S. Ct. 1804 (2019), it is unclear what effect, if any, I should give to guidance promulgated via the MPIM.  Nevertheless, the effective date regulation (42 C.F.R. § 424.520(d)) is clear and the MPIM guidance is consistent with the regulation.  See Gaurav Lakhanpal, MD, DAB No. 2951 at 5 n.5 (2019).  Effective January 1, 2022, CMS promulgated a new regulation, 42 C.F.R. § 424.522(a), which specifically addresses the effective date of reassignments.  86 Fed. Reg. 62,240, 62419 (November 9, 2021).  The new regulation provides:  “A reassignment of benefits under § 424.80 is effective beginning 30 days before the Form CMS–855R is submitted if all applicable requirements during that period were otherwise met.”  Id.  As such, even under the new rule, the earliest Petitioner’s employer could submit claims for her services would be October 9, 2019.

⁴ My findings of fact and conclusions of law appear as numbered headings in bold italic type.