Stacy L. Conn, FNP-BC, DAB CR6205 (2022)

DECISION

Petitioner, Stacy L. Conn, FNP-BC, sought to enroll as a supplier to the Medicare program.  Wisconsin Physicians Services Insurance Corporation (WPS), an administrative contractor for Respondent, the Centers for Medicare & Medicaid Services (CMS), determined her effective date of enrollment to be June 29, 2020.  CMS adopted this determination, which Petitioner now disputes.  As explained herein, I affirm CMS’s effective date determination.

I.    Background

Petitioner electronically filed an application to enroll as a biller to the Medicare program.  CMS Ex. 1.  She also applied to reassign her benefits to Great Lakes Medical Group, P.C.  CMS Ex. 4.  WPS received both these applications on May 8, 2020.  CMS Exs. 1, 4.  Both applications identified Petitioner and Srinivasarao Pulapaka as contact persons and provided different mailing addresses for each.  CMS Ex. 1 at 5; CMS Ex. 4 at 2.  Petitioner provided an e-mail address for herself but not Mr. Pulapaka.  Id. 

On May 12, 2020, WPS asked Petitioner to correct section 2H, complete section 2L, and provide a missing signature in section 15 of her individual enrollment application.  CMS Ex. 2. at 1.  The contractor warned Petitioner it could reject her applications if she did not provide the requested revisions “within 30 calendar days from the postmarked date of

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th[e] letter.”  Id.  WPS only issued this notice to Mr. Pulapaka’s address.  CMS Exs. 1, 2, 4; CMS Br. at 3; P. Br. at 1.

WPS received no response from Petitioner and on June 11, 2020, mailed two rejection letters to the attention of Petitioner and Mr. Pulapaka at the address associated with Pulapaka.  CMS Exs. 3, 5.  WPS notified Petitioner it rejected her individual enrollment and reassignment applications because she failed to provide the revisions WPS requested on May 12, 2020.  CMS Ex. 3 at 1; CMS Ex. 5 at 1.  WPS advised Petitioner to “complete a new Medicare enrollment application(s)” to effectuate her enrollment and reassignment requests.  Id.

On June 29, 2020, Petitioner submitted and WPS received a CMS-855O¹ Medicare enrollment application.  CMS Ex. 6 at 1.  Petitioner sought to enroll as a non-billing supplier to the Medicare program and again included both herself and Pulapaka as authorized contact persons with different mailing addresses for each.  Id. at 3-4.

On June 30, 2020, WPS notified Petitioner it had received her application and asked her to complete section 4B of the application and “include a newly-completed and dated CMS 855O Certification Statement . . . .”  CMS Ex. 7 at 1.  WPS received this information from Petitioner by facsimile on July 1, 2020.  CMS Ex. 8.

On July 16, 2020, WPS informed Petitioner it approved her Medicare enrollment application.  CMS Ex. 9 at 1.  On July 29, 2020, Petitioner through Mr. Pulapaka requested reconsideration of WPS’s effective date determination.  CMS Ex. 10 at 1.  Mr. Pulapaka alleged “[t]he original application was done via [PECOS] and after a long gap . . . we found that a letter was sent out to me as [I] am the contact person on the letter but no [email was sent to Petitioner] who is the applicant and also no email was sent to me.”  Id.  Petitioner requested WPS establish her effective date to be the date her first application was electronically submitted.  Id. 

On August 4, 2020, WPS issued an unfavorable reconsidered determination, stating:

[a]fter further review, the initial applications submitted were to reassign Medicare benefits to Great Lakes Medical Group

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PC and not to order and certify items or services for Medicare beneficiaries.  The effective date is the date the supplier filed an enrollment record that is subsequently approved and not when the application is initiated . . . . According to our records the CMS 855O web application was received June 29, 2020 . . . [and] the effective date June 29, 2020, was issued correctly.  We are unable to grant an earlier effective date, as requested.

CMS Ex. 13 at 1-2.

Petitioner timely requested a hearing to challenge WPS’s determination of the effective date for her Medicare enrollment before an Administrative Law Judge in the Civil Remedies Division, and I was designated to hear and decide this case.

II.    Admission of Exhibits and Decision on the Record

On August 12, 2020, I issued an Acknowledgment and Pre‑hearing Order (Pre‑hearing Order) setting forth a schedule for the parties to submit arguments and evidence.  CMS filed a motion for summary judgment and brief (CMS Br.) and 13 proposed exhibits (CMS Exs. 1-13).  Petitioner filed a brief (P. Br.) opposing summary judgment with no proposed exhibits.  Petitioner made no objections to CMS’s proposed exhibits.  I admit CMS Exhibits 1 through 13 into the record.

I advised the parties I would deem an in-person hearing to be necessary only if a party submitted written direct testimony of a proposed witness and the opposing party requested an opportunity to cross-examine a witness.  Pre-hearing Order ¶ 11; Civ. Remedies Div. P. §§ 16(b), 19(b).  In this case, 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 ¶¶ 9-11; Civ. Remedies Div. P. §§ 16(b), 19(b).  I decide this case on the record based on the parties’ written submissions and arguments.  Civ. Remedies Div. P. § 19(d); James Brian Joyner, M.D., DAB No. 2902 at 12 (2018).  CMS’s motion for summary judgment is denied as moot.

III.    Issue

Whether CMS had a legitimate basis for establishing June 29, 2020, as the effective date of Petitioner’s Medicare enrollment.

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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 Analysis²

A. Applicable Law

1. Enrollment

Petitioner participates in the Medicare program as a “supplier.”  Soc. Sec. Act § 1861(d); 42 C.F.R. § 498.2.  To receive Medicare payments for the services it furnishes 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 “establish eligibility to submit claims for Medicare-covered items and services, and the process that Medicare uses to establish eligibility to order or certify Medicare-covered items and services.”  42 C.F.R. § 424.502; 79 Fed. Reg. 72,500, 72,501-503 (Dec. 5, 2014) (explaining the term “enrollment” encompasses both a supplier’s enrollment in Medicare solely to order or certify items and services and a supplier’s enrollment in Medicare to enroll and obtain billing privileges).

A prospective supplier wishing to bill the Medicare program for items or services rendered to program beneficiaries must complete and submit an enrollment application.  42 C.F.R. §§ 424.510(d)(1), 424.515(a).  An enrollment application refers to either a CMS‑approved paper application or an electronic process approved by the Office of Management and Budget.  42 C.F.R. § 424.502.  When CMS determines a prospective supplier meets the applicable enrollment requirements, it grants Medicare billing privileges, meaning the supplier can submit claims and receive payments from Medicare for covered services provided to program beneficiaries.

Alternatively, a prospective supplier may also enroll solely to order or certify items and services for Medicare beneficiaries; in that circumstance, the supplier may submit a CMS-855O Medicare enrollment application.  79 Fed. Reg. at 72,501-72,503.  CMS enrolls a supplier who successfully completes a CMS-855O application for the “sole purpose of ordering or certifying Medicare items or services . . . .” Id.  Such a supplier will not be granted Medicare billing privileges.  Id. at 72,501.

The effective date for a supplier’s enrollment “is the later of the date of filing” a subsequently approved enrollment application or “the date that the supplier first began

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furnishing services at a new practice location.”³  42 C.F.R. § 424.520(d) (emphasis added); 73 Fed. Reg. 69,726, 69766-67 (Nov. 19, 2008); 79 Fed. Reg. at 72,503 (“In light of our changes to [42 C.F.R.] §§ 424.502, 424.505, and 424.510, the provisions of subpart P apply equally to suppliers who enroll in order to obtain Medicare billing privileges and those who enroll exclusively to order or certify Medicare items or services.”); Wishon Radiological Med. Grp., Inc., DAB No. 2941 at 6 (2019) (“Accordingly, the effective date of enrollment is, and must be, based on the date of receipt of an application that was actually approved, not one that was rejected.”).

2. Rejection

 “Reject/Rejected means that the provider or supplier’s enrollment application was not processed due to incomplete information, or that additional information or corrected information was not received from the provider or supplier in a timely manner.”  42 C.F.R. § 424.502.  CMS may reject an enrollment application for several reasons.  42 C.F.R. § 424.525(a)(1)-(3).  Once CMS rejects an enrollment application, a supplier “must complete and submit a new enrollment application and submit all supporting documentation for CMS review and approval.”  42 C.F.R. § 424.525(c).  CMS’s rejection of a supplier’s Medicare enrollment application is “not afforded appeal rights.”  42 C.F.R. § 424.525(d); see also 42 C.F.R. § 498.3(b).

B. Analysis

1. WPS received a CMS-855O Medicare enrollment application from Petitioner on June 29, 2020 it subsequently approved, making Petitioner’s effective date of enrollment June 29, 2020.  

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).

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On June 29, 2020, Petitioner submitted an enrollment application that WPS ultimately processed to approval.  CMS Exs. 6, 9.  The record does not reflect an earlier application submitted by Petitioner subsequently approved by WPS.  Petitioner submitted earlier individual enrollment and reassignment applications, but those applications were rejected by CMS’s contractor.  CMS Exs. 1-5.  Petitioner’s correct effective date of enrollment as a supplier to the Medicare program is June 29, 2020, the date she filed her subsequently approved enrollment application.  42 C.F.R. § 424.520(d); Urology Grp. of NJ, LLC, DAB No. 2860 at 7-9 (2018); Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017).

2. I have no authority to review WPS’s decision to reject Petitioner’s May 8, 2020 enrollment and reassignment applications or otherwise provide her equitable relief.

Petitioner explains she did not timely receive WPS’s May 12, 2020 development letter seeking revisions to her May 8, 2020 enrollment application because of COVID-19 restrictions imposed by the governor of Michigan.⁴  P. Br. at 2.  Petitioner argues these restrictions prevented Mr. Pulapaka from retrieving WPS’s correspondence mailed to his office address.  Id. at 1-2.  Petitioner also points out WPS never sent her its development request letter, either by mail to her address or to her e-mail address.  Id. at 1.  Finally, Petitioner claims an unidentified CMS representative erroneously advised her that her effective date of enrollment should be retroactive to her first application because she had not received correspondence from WPS concerning its development requests.  Id.  Petitioner therefore contends she should be awarded an effective date of May 8, 2020 because WPS improperly rejected her initial applications after failing to provide adequate notice to her of its request for development.  Id. at 1-2.

Petitioner’s arguments are persuasive.  In particular, it is difficult to understand why WPS did not simply e-mail its development requests to Petitioner.  Though Petitioner applied electronically and provided her e-mail address, WPS chose to issue paper correspondence to the secondary contact on Petitioner’s application.  This action made little sense during a global pandemic.  WPS’s employees surely understood individuals were limited at the time in their ability to freely travel to engage in routine business.  Mr. Pulapaka had only a brief window of time (approximately ten days following rescission of the governor’s stay-home order) in which he could have collected business correspondence and alerted Petitioner.

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Nothing in the regulations requires CMS or its contractors to preference electronic over written communication or to mail correspondence to more than one contact person (though it surely would make sense to contact the applicant directly, if the option is presented).  And it would have been enormously sensible of Petitioner to include Mr. Pulapaka’s e-mail address when she identified him as a contact person for her applications.  But a national emergency requires slightly more care and effort from the government and its contractors.  Through its bureaucratic indifference, WPS heightened the odds Petitioner would not be able to respond to its development request.

But regardless of the merits of Petitioner’s arguments, I am unable to review WPS’s decision to reject Petitioner’s initial applications because that rejection is not an initial determination which falls within my jurisdiction.  42 C.F.R. § 498.3(b).  Indeed, the Secretary’s regulations explicitly preclude a supplier like Petitioner from appealing rejection of an enrollment application before me.  42 C.F.R. § 424.525(d); see also James Shepard, M.D., DAB No. 2793 at 8 (2017) (providing 42 C.F.R. § 424.525(d) “plainly prohibits” ALJ review of a rejected application because there are no appeal rights for such a determination).  Petitioner is not permitted to “seek review of an unappealable rejection of an incomplete application by the ‘back door’ route of challenging the effective date of a later application which was processed to approval.”  Wishon Radiological Med. Grp., Inc., DAB No. 2941 at 8 (2019).

Moreover, to the extent Petitioner seeks equitable relief from me for WPS’s indifferent if technically proper approach to her first application, or for the limitations stemming from Michigan’s shut-down order during the period of time WPS sought development from her, or because a CMS employee allegedly gave her poor advice,⁵ I do not have the authority to grant Petitioner such equitable relief.  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 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); UpturnCare Co., DAB No. 2632 at 19 (2015) (providing the Board may not overturn denial of provider enrollment in Medicare on equitable grounds).

My jurisdiction is limited to review of CMS’s determination of the effective date of Petitioner’s enrollment application under 42 C.F.R. § 424.520(d).  As explained above, WPS properly determined, pursuant to the controlling regulations, that June 29, 2020, is

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Petitioner’s effective date of enrollment as a supplier, as that is the date WPS received an application from her it subsequently approved.

VI.   Conclusion

For the reasons explained above, I affirm CMS’s determination that June 29, 2020, is Petitioner’s effective date of enrollment as a supplier to the Medicare program.

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Endnotes

¹ Petitioner first submitted an individual enrollment application to enroll as a biller to the Medicare program.  CMS Ex. 1; CMS Ex. 3 at 1, CMS Ex. 5 at 1 (denying Petitioner’s enrollment application because she had not completed sections of the “855I application,” referring to the form used by individuals to enroll as billers).  A CMS 855O application, by contrast, serves to enroll suppliers who wish to be limited to ordering and certifying items and services and prescribing Part D drugs for program beneficiaries without submitting claims associated with those orders.  See 42 C.F.R. § 424.502 at Enroll/Enrollment (defining enrollment to mean the process by which CMS establishes eligibility to bill the Medicare program for covered items and services, except for those suppliers who use the CMS-855O form “for the sole purpose of obtaining eligibility to order or certify Medicare-covered items and services . . .”).

² My findings of fact and conclusions of law are set forth in italics and bold font.

³ A new regulation in effect January 1, 2022 specifies the enrollment date for a supplier using Form CMS-855O.  86 Fed. Reg. 62,240, 62,357 (Nov. 9, 2021); 42 C.F.R. § 424.522(b) (“[t]he effective date of a Form CMS-855O enrollment is the date on which the Medicare contractor received the Form CMS-855O application if all other requirements are met.”  WPS’s initial determination in this case, issued well before the new regulation governing CMS-855O applications went into effect, applied the provisions set forth at 42 C.F.R. § 424.520(d) that generally govern supplier effective date determinations.CMS Exs. 9, 13.  The new regulation does not apply to the present case and like WPS, I apply the regulatory requirements set forth at 42 C.F.R. § 424.520(d).

⁴ On March 23, 2020, Michigan governor Jennifer Whitmer issued an executive order requiring individuals to stay at home unless they were part of the critical infrastructure workforce, engaged in an outdoor activity, or performed tasks necessary to the health and safety of themselves or their family.  Mich. Exec. Order No. 2020-21 (Mar. 23, 2020), available at https://www.michigan.gov/whitmer/news/state-orders-and-directives/2020/03/23/executive-order-2020-21.  Governor Whitmer rescinded this order on June 1, 2020.  Mich. Exec. Order No. 2020-110 (Jun. 1, 2020), available at https://www.michigan.gov/whitmer/news/state-orders-and-directives/2020/06/01/executive-order-2020-110.

⁵ Petitioner’s reliance on alleged misrepresentations from an agent of CMS or WPS amounts to a claim of equitable estoppel.  But “even if equitable estoppel were available (which it is not), the record evidence does not support the elements of such a claim.”  Gregory J. Frazer, Au.D., Ph.D., DAB No. 3038 at 12 (2021).