Victor Lin, D.O., CR6270 (2023)

DECISION

This decision affirms the determination of Noridian Healthcare Solutions (Noridian), a contractor for the Centers for Medicare & Medicaid Services (CMS), that the effective date of Dr. Victor Lin’s (hereinafter “Petitioner”) Medicare enrollment and billing privileges is July 1, 2021, with a retrospective billing date of April 2, 2021. 

I.     Background and Procedural History

On January 11, 2022, Petitioner, pro se, timely requested a hearing before an administrative law judge (ALJ) to contest the effective date of his Medicare enrollment.¹ 

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On January 12, 2022, I issued an acknowledgment letter and standing pre-hearing order (Standing Order), along with a non-discrimination notice and the Civil Remedies Division Procedures (CRDP).  

On February 16, 2022, CMS filed a Motion for Summary Judgment and a pre-hearing brief (CMS Br.), along with six exhibits (CMS Exs. 1-6).  CMS did not offer witnesses or provide any sworn declarations.  

Petitioner failed to file a pre-hearing exchange by March 23, 2022, the deadline established in the Standing Order.  An Order to Show Cause was issued on April 4, 2022, ordering Petitioner to show cause why the case should not be dismissed.  Petitioner was granted 10 days to respond to the order and to confirm whether he intended to proceed with the case and to submit a pre-hearing exchange.  Because Petitioner failed to respond to the order to show cause, I issued an order dismissing Petitioner’s hearing request on April 20, 2022.  

On May 4, 2022, Petitioner filed a motion to vacate the dismissal of his request for hearing pursuant to 42 C.F.R. § 498.72. 

On July 25, 2022, Petitioner’s motion to vacate the dismissal order was granted.  In addition to finding good cause to vacate the dismissal, I informed Petitioner that his pre-hearing exchange was due within 30 days of the date of the order vacating the dismissal. 

On August 23, 2022, Petitioner filed a Response Brief (P. Br.) along with six exhibits (P. Exs. A-E, G).²  It is unclear as to whether Petitioner’s exhibits E and G are being provided for the first time at the ALJ level.  The exhibits were not referenced or provided as exhibits in the reconsidered determination by Noridian.  Because the exhibits are directly related to Petitioner’s arguments and because the timing of the exhibits are unclear, I find that there is good cause to admit the evidence at this level.  42 C.F.R. § 498.56(e).  

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Neither party offered witnesses, so this case will be decided on the written record, without considering whether the standards for summary judgment are satisfied.  CRDP § 19(b).  Furthermore, in the absence of objections, all of CMS’s and Petitioner’s proposed exhibits are admitted into evidence.  Standing Order § 9. 

II.     Findings of Fact

The following Findings of Fact are undisputed. 

1. Petitioner is a Doctor of Osteopathic Medicine located in San Gabriel, California. Br. 

2. On April 8, 2021, Noridian received electronic CMS-855B, CMS-855I, and CMS-855R applications for Petitioner and the group, Sunny Day Medicine Inc., through the Medicare Provider Enrollment, Chain, and Ownership System (PECOS). CMS Exs. 2, 5. 

3. On April 16, 2021, Noridian sent an email to Petitioner’s contact person, acknowledging receipt of the electronic applications and requesting that Petitioner submit revisions and/or supporting documentation. CMS Ex. 1 at 1.  The email requested that Petitioner submit four documents:  a copy of the CMS-460 Form, a copy of an Internal Revenue Service generated document confirming the Legal Business Name and Tax Identification Number, a copy of the Medical Board of California (Medical Board) Fictitious Name Permit (FNP)³, and a copy of a voided check.  CMS Ex. 1 at 2.  The email noted that failure to submit the requested information before May 16, 2021, may result in the rejection of the applications.  CMS Ex. 1 at 1.  

4. On April 19, 2021, Petitioner’s contact called Noridian’s Enrollment Contact Center (ECC) to confirm what revisions and documents were required. CMS Ex. 5 at 3.  The documents were submitted and on April 29, 2021, Petitioner’s contact again called Noridian’s ECC to inquire whether the submitted corrections and documents were received.  CMS Ex. 5 at 3.  Petitioner’s contact was informed that Noridian had not received the corrections.  CMS Ex. 5 at 3-4.  Petitioner’s contact was instructed to submit the requested corrections via email to PE-RFI@Noridian.com.  On that same day, Noridian received some of Petitioner’s requested corrections.  CMS Ex. 5 at 3. 

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5. On May 4, 2021, Petitioner’s contact called Noridian’s ECC to inquire whether Noridian received the corrections submitted by Petitioner. CMS Ex. 5 at 3.  A Noridian ECC representative confirmed that the corrections were received.  CMS Ex. 5 at 3.  

6. By letter dated May 17, 2021, Noridian issued a letter informing Petitioner that the applications submitted on April 8, 2021 were rejected due to failure to submit a FNP. CMS Ex. 2 at 1.  The letter instructed Petitioner to complete new Medicare enrollment applications in order to enroll in Medicare.  CMS Ex. 2 at 1. 

7. On May 18, 2021, in response to Noridian’s rejection letter, Petitioner’s contact called Noridian’s ECC to explain that they were previously informed, by an unknown Noridian representative, to submit a CMS-855R application instead of the FNP. CMS Ex. 5 at 3-4. 

8. On July 1, 2021, Noridian received new CMS-855B and CMS-855I applications via PECOS for both Petitioner and Sunny Day.

9. By letter dated July 8, 2021, Noridian acknowledged receipt of Petitioner’s new Medicare enrollment applications and informed Petitioner that revisions and additional information were needed to process the applications. CMS Ex. 3 at 1.  On July 20, 2021, Noridian received the requested revisions and the additional information.  CMS Ex. 5 at 3. 

10. On August 4, 2021, Noridian informed Petitioner that the July 1, 2021 enrollment application was approved with a retrospective billing date of April 2, 2021.⁴ CMS Ex. 4 at 1.

11. On August 30, 2021, Petitioner submitted a request for reconsideration to appeal the rejection of the applications submitted on April 8, 2021. Petitioner also requested an effective date of April 8, 2021 and a retrospective billing date of January 2021. CMS Ex. 5 at 1, 4.  Petitioner argued that Noridian’s rejection of the April 8, 2021 applications was improper because his failure to submit a physical copy of the FNP was caused by the Medical Board.  CMS Ex. 5 at 4.  Although Petitioner applied for the FNP in November 2019, he did not receive a physical copy of the FNP until on or after May 2021 due to alleged staffing issues at the Medical Board, which prevented him from complying with Noridian’s request.  CMS Ex. 5 at 4. 

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12. On November 24, 2021, Noridian denied Petitioner’s reconsideration request, finding that no errors were made regarding the determination of his and Sunny Day’s effective date. Noridian determined that July 1, 2021, was the proper effective date with retrospective billing privileges beginning April 2, 2021. CMS Ex. 5 at 4. 

III.     Jurisdiction

This tribunal has jurisdiction to hear and decide this case.  42 C.F.R §§ 498.3(b)(15), 498.5(l)(2); see also 42 U.S.C. § 1395cc(j)(8).  

IV.     Legal Authorities

The Social Security Act (Act) establishes the enrollment process for providers and suppliers participating in Medicare or Medicare related programs.  42 U.S.C. §§ 1302, 1395cc(j).  Under the Act, “suppliers” are physicians or other practitioners, a facility or other entity (other than a provider of services) that furnishes items or services under the Medicare provisions of the Act.  42 U.S.C. § 1395x(d); see also 42 U.S.C. § 1395x(u).  Providers include hospitals, skilled nursing facilities, and home health agencies.  42 U.S.C. § 1395x(u).  Petitioner is a “supplier.”  42 U.S.C. § 1395x(d); 42 C.F.R. § 400.202.  

A provider or supplier must be enrolled in the Medicare program in order to receive payment for covered items or services from either Medicare (in the case of an assigned claim) or a Medicare beneficiary.  42 C.F.R. § 424.505.  If enrolled, the provider or supplier receives billing privileges and is issued a valid billing number effective for the date a claim was submitted for an item that was furnished or a service that was rendered.  42 C.F.R. § 424.505. 

CMS may reject a supplier’s enrollment application for any of the reasons listed at 42 C.F.R. § 424.525(a).  If CMS rejects the application, “the . . . 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). 

If CMS approves the enrollment application, the effective date of enrollment for a physician or nonphysician practitioner may only be the later of two dates:  the date when the practitioner filed an application for enrollment that was subsequently approved by a Medicare contractor charged with reviewing the application on behalf of CMS; or the date when the practitioner first began providing services at a new practice location.  42 C.F.R. § 424.520(d).  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

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before the services were provided, or 90 days if a Presidentially-declared disaster precluded enrollment in advance of providing services.  42 C.F.R. § 424.521(a). 

The determination of a supplier’s effective date is an initial determination subject to ALJ review.  42 C.F.R. § 498.3(b)(15).  However, unlike the determination of a supplier’s effective date, “[e]nrollment applications that are rejected are not afforded appeal rights.”  42 C.F.R. § 424.525(d); see 42 C.F.R. § 498.3(b). 

V.     Analysis

The regulations provide that the effective date of enrollment for a physician or nonphysician practitioner may only be the later of two dates:  the date when the practitioner filed an application for enrollment that was subsequently approved by a Medicare contractor charged with reviewing the application on behalf of CMS; or the date when the practitioner first began providing services at a new practice location.  42 C.F.R. § 424.520(d).  Furthermore, the regulations provide that a practitioner may retrospectively bill Medicare up to 90 days prior to the effective date if a Presidentially-declared disaster precluded enrollment in advance of providing services.  42 C.F.R. § 424.521(a)(1)(ii).  

It is undisputed that Petitioner completed electronic applications for Medicare enrollment on July 1, 2021, and that the enrollment applications were approved by Noridian with a retrospective billing date of April 2, 2021.  P. Ex. A.  However, Petitioner has requested a retrospective billing date of January 2021 and an effective date of April 8, 2021, the date that CMS received Petitioner’s enrollment applications that were eventually rejected, because the failure to provide a physical copy of the FNP, which ultimately led to Noridian’s rejection of his April 8, 2021 applications, was not his fault.  P. Br.  Petitioner argues that the Medical Board’s failure to timely provide a physical copy of his FNP coupled with Noridian’s ECC’s unnamed representative’s alleged incorrect advice regarding submission of the FNP were the reasons for his failure to submit the FNP as requested by Noridian in an April 16, 2021 email.  P. Br.; CMS. Ex. 1.  Petitioner also argues that he should be reimbursed for the work that he performed between January 2021 and March 2021 because he will face financial hardship due to providing months of services without payment.  P. Br. 

However, Noridian did not err in determining that July 1, 2021, the date that CMS received Petitioner’s applications that were subsequently approved, is the correct effective date of Petitioner’s Medicare enrollment and billing privileges.  73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008) (“We . . . have adopted the ‘date of filing’ as the date that the Medicare contractor receives a signed provider enrollment application that the Medicare contractor is able to process to approval.”); Alexander C. Gatzimos, MD, JD, LLC, DAB No. 2730 at 17 (2016).  Noridian also provided Petitioner with 90 days of retrospective billing privileges due to the COVID-19 pandemic, a Presidentially-declared

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disaster.  CMS Ex. 5 at 4.  Pursuant to the regulations, April 2, 2021, is the earliest possible retrospective billing date that Petitioner could have received.  42 C.F.R. § 424.521(a)(1)(ii).  

Petitioner appears to assert an equitable estoppel argument by arguing that when he called Noridian to inquire about the status of his April 8, 2021 applications, an unidentified Noridian representative allegedly gave him erroneous advice on whether he had to submit the FNP.  P. Br.; CMS Ex. 1; CMS Ex. 5.  “[E]ven 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).  Though I appreciate the efforts of physicians, particularly during the COVID-19 pandemic, and the financial hardship endured from working without payment, I do not have the legal authority to grant Petitioner’s requests.  Petitioner’s arguments regarding financial hardship, and delays caused by the Medical Board amount to a request for equitable relief.  However, the regulations do not provide this tribunal the authority to grant equitable relief.  Therefore, Petitioner’s effective date cannot be changed based upon the reasons provided.  US Ultrasound, DAB No. 2302 at 8 (2010) (“[n]either 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.”). 

Petitioner challenges a decision—rejection of Petitioner’s initial enrollment applications—that I have no authority to review.  42 C.F.R. § 424.525(d); see 42 C.F.R. § 498.3(b).  I am not authorized to review Noridian’s rejection of Petitioner’s April 8, 2021 applications because “[e]nrollment applications that are rejected are not afforded appeal rights.”  42 C.F.R. § 424.525(d).  There is “no applicable authority allowing a supplier 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).  Petitioner cannot seek review of the April 8, 2021 applications, which were rejected because Petitioner failed to provide the requested FNP, by challenging the effective date of the July 1, 2021 applications that were subsequently approved.  Id. 

VI.     Conclusion

For the reasons stated above, I find that CMS correctly determined that Petitioner’s effective date for Medicare enrollment and billing privileges is July 1, 2021, with

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a retroactive billing date of April 2, 2021.  Therefore, CMS’s determination is AFFIRMED. 

Endnotes

¹  In the request for hearing (RFH), Petitioner only challenges the effective date of his Medicare enrollment and billing privileges.  Petitioner’s RFH did not mention or challenge the effective date of Sunny Day Medicine Inc.’s Medicare enrollment.  Additionally, Petitioner only attached the reconsideration determination for Victor Lin, D.O., with his unique National Provider Identifier and Provider Transaction Access Number.  See RFH.  However, in the reconsideration determination, Noridian determined “no errors were made in the processing of Dr. Lin’s and Sunny Day Medicine Inc’s Medicare enrollment applications.”  CMS Ex. 5 at 4 (emphasis added).  Based on Petitioner’s RFH, this decision will only address the effective date of Medicare enrollment and billing privileges for Petitioner Lin. 

²  Petitioner’s six exhibits are labeled as “exhibits A-E, G.”  Although Petitioner did not mark the exhibits as required by my Standing Order, I used my discretion to admit the exhibits as evidence and treat them as marked.  Furthermore, Petitioner’s exhibits A-E and G were not paginated properly, so the citations may refer to the PDF page numbers in the documents uploaded in the Departmental Appeals Board Electronic Filing (DAB E-File) system. 

³  CMS and Noridian refer to the document issued by the State of California Department of Consumer Affairs and filed as P. Ex. E as a Fictitious Name Certificate.  The distinction between “certificate” or “permit” for the purposes of this decision is not substantive. 

⁴  While the letter states that April 2, 2021, is Petitioner’s effective date, as I will discuss herein, July 1, 2021, is the effective date with a retrospective billing date of April 2, 2021.