Delta Health System d/b/a Delta Health – Highland Hills, DAB CR6334 (2023)

DECISION

The Centers for Medicare & Medicaid Services (CMS) approved Petitioner’s Medicare enrollment application, effective October 27, 2021.  Petitioner challenges that effective date, and CMS moves for summary judgment.  Based on the undisputed evidence, I grant summary judgment in favor of CMS and affirm CMS’s determination to assign October 27, 2021, as the effective date for Petitioner’s enrollment in Medicare, provider agreement, and billing privileges.

I. Background and Procedural History

The material facts are undisputed.  Petitioner, Delta Health System d/b/a Delta Health – Highland Hills, is a non-profit acute care hospital in Mississippi.  CMS Exhibit (Ex.) 15 at 1-2.  On July 27, 2021, the Mississippi Department of Health (MDOH) granted a hospital license to the Delta Health - Highland Hills hospital, because it determined that the hospital substantially complied with the requirements of Miss. Code § 41-9-11.  CMS Ex. 12.  It is important to note, that in this capacity, MDOH verified Petitioner’s

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compliance only with state law requirements and not Medicare requirements.  CMS Ex. 12; see also CMS Ex. 13 at 5 (“Although Delta Health argues that it received an initial survey from MDOH, on July 27, 2021, that is the date that the MDOH provided Delta Health a state license.  CMS has verified that MDOH conducted an inspection on July 27, 2021 to ascertain licensure requirements pursuant to Miss. Code Ann. § 41-9-21.”).

On July 28, 2021, Novitas Solutions, Inc., a Medicare Administrative Contractor (MAC), received Petitioner’s Medicare enrollment application via the Provider Enrollment, Chain, and Ownership System (PECOS).  CMS Ex. 6 at 1.  By letter dated August 5, 2021, the MAC notified Petitioner it had received Petitioner’s Medicare enrollment application, but that additional information regarding proof of non-profit status was required to complete the application.  CMS Ex. 7 at 1.  On August 16, 2021, the MAC notified Petitioner via email that it required corrections to the enrollment application and directed Petitioner to upload a copy of the requested license.  CMS Ex. 8 at 1.  A September 21, 2021 Application Data Report indicates that the MAC received application corrections on July 29, August 3, and August 16, 2021.  CMS Ex. 9 at 1.

On September 21, 2021, the MAC informed Petitioner that its Medicare enrollment application had been forwarded to the CMS Regional office for final review and that “[a] survey may be conducted by a State Survey Agency or deemed accrediting organization approved by CMS to ensure compliance.”  CMS Ex. 10 at 1.  From October 25 to October 27, 2021, a state survey agency conducted a survey on behalf of CMS to assess compliance with Medicare enrollment requirements.  CMS Ex. 5 at 1.  The survey agency found no deficiencies and noted that the facility “met all Medicare Conditions of Participation for Hospitals (ACU).”  CMS Ex. 5 at 1.

On November 8, 2021, the CMS Division of Survey and Enforcement informed Petitioner that it approved Petitioner’s participation in the Medicare program effective October 27, 2021.  CMS Ex. 2 at 2.  On November 10, 2021, the MAC informed Petitioner that it had processed a Medicare Tie in Notice approving Petitioner’s initial enrollment application.  CMS Ex. 3 at 2 (referencing CMS Ex. 4).

On January 4, 2022, Petitioner requested reconsideration of the October 27, 2021 effective date.  CMS Ex. 1 at 1.  Petitioner requested an effective date of July 29, 2021, which it stated was the date on which it began seeing Medicare patients.  CMS Ex. 1 at 1.  On February 23, 2022, CMS issued a reconsidered determination upholding October 27, 2021, as the effective date for Petitioner’s Medicare enrollment and billing privileges.  CMS Ex. 13 at 5.

Petitioner timely filed a hearing request on March 9, 2022.  On March 14, 2022, the Civil Remedies Division acknowledged receipt of the hearing request and issued my Standing Prehearing Order.  In accordance with the Standing Prehearing Order, CMS filed its prehearing exchange on April 18, 2022, which included a combined motion for summary

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judgment and prehearing brief (CMS Br.) and fifteen exhibits (CMS Exs. 1-15).  On April 28, 2022, Petitioner filed its prehearing exchange, which included a response opposing CMS’s motion for summary judgment and a prehearing brief (P. Br.) without additional exhibits, but with two proposed witnesses.  CMS filed its reply brief (CMS Reply) on May 13, 2022.

II. Jurisdiction

Petitioner timely requested a hearing.  I have jurisdiction to hear and decide this case.  42 U.S.C. § 1395cc(j)(8); 42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2).

III. Issues

Whether summary judgment is appropriate; and

Whether the effective date of Petitioner's enrollment in the Medicare program is October 27, 2021.

IV. Exhibits and Summary Judgment

Because Petitioner did not object to any of CMS’s proposed exhibits, I admit CMS’s proposed exhibits 1-15 into the record.  See Standing Prehearing Order ¶ 5(e)(vii); Civil Remedies Division Procedures (CRDP) § 14(e).

Although neither party affirmatively waived an in-person hearing, an in‑person hearing is not required because I find that summary judgment is appropriate in this case.  CRDP § 19(a).

V. Applicable Law

The Social Security Act (Act) authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations governing the enrollment of providers of services and suppliers in the Medicare program.  Specifically, section 1866(j)(1) of the Act requires the Secretary to implement regulations establishing an enrollment process for providers and suppliers.  42 U.S.C. § 1395cc(j)(1).

42 C.F.R. Part 489 implements section 1866 of the Act.  A hospital is one of the enumerated providers to whom the provisions of Part 489 apply.  42 C.F.R. § 489.2(b)(1); see also 42 U.S.C. § 1395x(u) (defining a “hospital” as a “provider of services”).  To participate in the Medicare program, a provider must meet certain conditions of participation, and pursuant to 42 C.F.R. § 489.10, a “State survey agency will ascertain whether the provider meets the conditions of participation or requirements (for SNFs) and make its recommendations to CMS.”  42 C.F.R. § 489.10(d); see also

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42 C.F.R. § 488.3(a)(2).

Based on the state survey agency’s recommendations, CMS will determine whether a provider or supplier is eligible to participate in or be covered under the Medicare program.  42 C.F.R. § 488.12(a)(1).  Once CMS determines that a provider has met all applicable requirements, it will send the provider copies of the agreement to provide services to Medicare beneficiaries.  Upon signature by the provider’s authorized official and CMS’s acceptance of the agreement, CMS will provide a notice specifying the effective date of the agreement.  42 C.F.R. § 489.11.

For those providers and suppliers requiring a state survey or accreditation by a CMS approved accreditation agency to participate in Medicare, the provider agreement is effective:

[O]n the date the State agency, CMS, or the CMS contractor survey (including the Life Safety Code survey, if applicable) is completed, or on the effective date of the accreditation decision, as applicable, if on that date the provider or supplier meets all applicable Federal requirements as set forth in this chapter. . . . However, the effective date of the agreement or approval may not be earlier than the latest of the dates on which CMS determines that each applicable Federal requirement is met. Federal requirements include, but are not limited to—

(1) Enrollment requirements established in part 424, subpart P, of this chapter. CMS determines, based upon its review and verification of the prospective provider’s or supplier’s enrollment application, the date on which enrollment requirements have been met;

(2) The requirements identified in §§ 489.10 and 489.12; and

(3) The applicable Medicare health and safety standards, such as the applicable conditions of participation, the requirements for participation, the conditions for coverage, or the conditions for certification.

42 C.F.R. § 489.13(b) (emphasis added).

A provider must be enrolled in the Medicare program to receive payment from Medicare for covered items or services.  42 C.F.R. § 424.505.  In addition to the various conditions of participation to obtain a provider agreement under part 489, a provider must meet the

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enrollment requirements specified in 42 C.F.R. § 424.510(d)(1)-(9) to successfully enroll in the Medicare program.  Providers who are subject to the provisions of Parts 488 and 489, which govern the survey, accreditation, and provider agreement requirements discussed above, must meet those same requirements to enroll in the Medicare program and obtain Medicare billing privileges.  42 C.F.R. § 424.510(d)(5).  The effective date of billing privileges for providers and suppliers requiring “State survey, certification or accreditation” is also governed by section 489.13.  42 C.F.R. § 424.520(a).

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

My conclusions of law are set forth in bold and followed by pertinent findings of fact and analysis.

A. Summary judgment is appropriate in this case.

Summary judgment is appropriate where there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law.  1866ICPayday.com, L.L.C., DAB No. 2289 at 2 (2009) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)).  The party moving for summary judgment bears the initial burden of demonstrating that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.  Id.  The moving party may show the absence of a genuine factual dispute by presenting evidence so one-sided that it must prevail as a matter of law, or by showing that the nonmoving party has presented no evidence “sufficient to establish the existence of an element essential to [that party’s] case, and on which [that party] will bear the burden of proof at trial.”  Livingston Care Ctr. v. U.S. Dep’t of Health & Human Servs., 388 F.3d 168, 173 (6th Cir. 2004) (quoting Celotex Corp., 477 U.S. at 323-24).  If the moving party carries its initial burden, then to prevail the non-moving party must come forward with specific facts showing that there is a genuine issue for trial.  Crestview Parke Care Ctr., DAB No. 1836 at 6 (2002) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986)); see also Vandalia Park, DAB No. 1939 (2004); Lebanon Nursing & Rehab. Ctr., DAB No. 1918 (2004).  In other words, the non-movant must furnish evidence of a dispute concerning a fact that would affect the outcome of the case if proven.  Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010), aff'd, Senior Rehab. & Skilled Nursing Ctr. v. Health & Human Servs., 405 F. App'x 820 (5th Cir. 2010).  In determining whether there are genuine issues of material fact for trial, the reviewer must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party’s favor.  Id.

CMS argues it is entitled to summary judgment, because the October 27, 2021 effective date established by CMS was the date it determined that Petitioner met all applicable health and safety requirements in accordance with 42 C.F.R. §§ 424.520(a) and 489.13.  CMS Br. at 5-6.

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Petitioner requests that I deny CMS’s Motion for Summary Judgment, because there are purportedly genuine issues of material fact pertaining to whether it had a “meaningful choice regarding whether to admit Medicare patients . . . in light of the COVID-19 public health emergency,” and whether the MAC’s “failure to respond to Delta Health in a timely manner significantly impacted its ability to navigate the enrollment process[.]”  P. Br. at 3.

I find that Petitioner’s arguments do not raise a genuine dispute as to any material fact.  There is no dispute that October 27, 2021, is the date on which CMS determined that Petitioner met each applicable federal requirement to participate in the Medicare program.  Facts related to Petitioner’s degree of volition in admitting Medicare patients during the COVID-19 pandemic due to the requirements of the Emergency Medical Treatment and Labor Act (EMTALA), and the potential effects of any communication issues with its MAC during the enrollment process would not affect the outcome of the case, and therefore are not material facts.  See Senior Rehab., DAB No. 2300 at 3.

With respect to EMTALA, the enforcement provisions in 42 U.S.C. § 1395dd pertain to “participating hospitals,” which subsection (e)(2) defines as “a hospital that has entered into a provider agreement under section 1395cc of this title.”  Petitioner had yet to enter into a provider agreement until October 27, 2021, so it was not a “participating hospital” subject to the provisions of the EMTALA, nor does Petitioner explain how this statute would authorize me to grant an earlier effective date.  See St. Anthony Hosp., DAB No. 1728 at *3 (2000 WL 900611) (explaining that the statute “imposes a series of requirements on hospitals that participate in Medicare and have emergency departments or render emergency care.”).  With respect to the communication issues with the MAC, Petitioner likewise cites no authority that would warrant an earlier effective date based on delays in the enrollment process, and I otherwise lack authority to grant equitable relief for Petitioner.  US Ultrasound, DAB No. 2302 at 7 (2010).  As such, summary judgment is appropriate in this case.

B. CMS had a legitimate basis under 42 C.F.R. §13 to assign an effective date of October 27, 2021.  

Petitioner, an acute care hospital, is a “provider” as defined in 42 C.F.R. § 489.2(b)(1).  To participate in the Medicare program, providers, like the Delta Health – Highland Hills hospital, must meet certain conditions of participation, and a state survey agency will ascertain whether the provider meets the applicable conditions of participation.  42 C.F.R. § 489.10(a) and (d).

On October 27, 2021, the state survey agency concluded its survey to ascertain whether Petitioner met the conditions of participation for hospitals.  CMS Ex. 5.  The state survey agency found no deficiencies, and CMS subsequently notified Petitioner, by letter dated November 8, 2021, that it approved Petitioner’s participation in the Medicare program

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effective October 27, 2021.  CMS Ex. 2 at 2.  In the reconsidered determination, the CMS hearing officer explained that “[o]n October 27, 2021, CMS granted Delta Health certification, effective October 27, 2021.”  CMS Ex. 13 at 3.  Petitioner presents no argument or evidence disputing the fact that October 27, 2021, was the date on which CMS approved Petitioner’s Medicare enrollment application.  Therefore, the undisputed evidence establishes October 27, 2021, as the date on which CMS determined all applicable federal requirements had been met for Petitioner to participate in the Medicare program and receive billing privileges.  See 42 C.F.R. §§ 424.510, 489.10.

The effective date of Petitioner’s provider agreement is governed by 42 C.F.R. § 489.13(b), which specifically applies to those providers and suppliers requiring a state survey, or accreditation by a CMS approved accreditation agency, to participate in the Medicare program.  Section 489.13(b) clearly establishes that “the effective date of the agreement or approval may not be earlier than the latest of the dates on which CMS determines that each applicable Federal requirement is met.”  42 C.F.R. § 489.13(b) (emphasis added).  Section 489.13(b) was revised effective October 1, 2010, “to make explicit that the effective date of a provider agreement or supplier approval may not be earlier than the latest of the dates on which each applicable Federal requirement is determined to be met.”  75 Fed. Reg. 50,042, 50,402 (Aug. 16, 2010).  In discussing the background of Part 489, the Secretary explained that so long as there are “still other Federal requirements that remain to be satisfied . . . the effective date would be the date when the last requirement has been satisfied, as determined by CMS.”  Id. at 50,401 (emphasis added).  Based on the plain language of the regulation and the undisputed evidence of record, October 27, 2021, is the latest date on which CMS determined that each applicable federal requirement had been met, and therefore the proper effective date.

Petitioner argues that the effective date should be changed to July 29, 2021, which is when it began seeing Medicare patients.  P. Br. at 2; CMS Ex. 1 at 1.  However, the regulations are clear that the effective date is the latest date on which CMS determines all applicable federal requirements have been met, and Petitioner cites to no authority permitting me to assign an effective date for a Medicare provider agreement or for billing privileges based on the date a hospital begins seeing Medicare patients.

Moreover, I have no authority to grant the equitable relief requested by Petitioner.  US Ultrasound, DAB No. 2302 at 7.  Petitioner cites to Carlos T.J. Martinez, D.O., Inc., DAB CR4836 (2017), for the proposition that ALJs have changed Medicare enrollment effective dates where MACs failed to uphold certain obligations during the process.  P. Br. at 5.  But that case involved CMS’s failure to demonstrate that the MAC provided notice of a rejected revalidation application from approximately a year prior, rather than an initial enrollment application.  Id. at 8.  Here, the MAC notified Petitioner that it needed additional info to process the application (CMS Exs. 7 and 8), and, unlike in Carlos T.J. Martinez, did not otherwise transmit any communications to Petitioner that would give the impression that its enrollment application had already been approved.

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Petitioner references several statutory provisions it argues support an effective date of July 29, 2021.  Petitioner first invokes 42 U.S.C. § 1395kk-1 and argues that the statute imposed upon the MAC a duty to comply with “basic standards of returning correspondence and providing support during the enrollment process.”  P. Br. at 4.  However, Petitioner cites to no specific provision within the statute.  The only potentially relevant provision appears in subsection (g)(2), which establishes a 45-day time frame for MACs to respond to written inquiries.  42 U.S.C. § 1395kk-1(g)(2).  The record does not indicate that a greater than 45-day delay occurred for the MAC to respond to any of Petitioner’s written inquiries.  Even if the record did establish that such a delay occurred, the statute provides no recourse for Petitioner to receive an effective date prior to October 27, 2021.  Ninety-one days elapsed between Petitioner’s initial enrollment application on July 28, 2021 (CMS Ex. 6 at 1), and the October 27, 2021 conclusion of the state survey (CMS Ex. 5).  CMS Exs. 7 at 1, 8 at 1, 9 at 1.  Even if ninety-one days amounted to an unreasonable delay after factoring in the dates the application was supplemented with additional information, the Board has held that a state survey agency’s delay in conducting a survey “is not a proper basis for appeal under 42 C.F.R. Part 498, nor do the regulations . . . permit an ALJ . . . to set an earlier effective date . . . based solely on equitable considerations . . . .”  Forest Glen Skilled Nursing & Rehab. Ctr., DAB No. 1887 at 10 (2003).

Petitioner further argues that CMS should have granted a waiver pursuant to 42 U.S.C. § 1320b-5 (Act § 1135) and urges me to apply this waiver as Petitioner’s enrollment application was submitted during the COVID-19 Public Health Emergency.  P. Br. at 4.  The statute provides, in relevant part, that:

• To the extent necessary to accomplish the purpose specified in subsection (a), the Secretary is authorized, subject to the provisions of this section, to temporarily waive or modify the application of, with respect to health care items and services furnished by a health care provider (or classes of health care providers) in any emergency area (or portion of such an area) during any portion of an emergency period, the requirements of subchapters XVIII, XIX, or XXI, or any regulation thereunder . . . pertaining to—
  • (1)
    • (A) conditions of participation or other certification requirements for an individual health care provider or types of providers,
    • (B) program participation and similar requirements for an individual health care provider or types of providers, and

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• • (C) pre-approval requirements;

42 U.S.C. § 1320b-5(b)(1)(A)-(C).

CMS argues that even if Petitioner were eligible for the waiver, it did not comply with the requirement to enroll via the Medicare Provider Enrollment Hotline and undergo a phone screening.  CMS Br. at 7.  CMS Ex. 11 is an FAQ page concerning provider enrollment and waivers under section 1135 of the Act, and provides that “CMS has established toll-free hotlines at each of the Medicare Administrative Contractors (MACs) to allow certain providers and suppliers to initiate temporary Medicare billing privileges.”  CMS Ex. 11 at 1.  This page indicates that the MAC hotline was one way for providers to obtain temporary billing privileges.  It does not, as CMS appears to argue, establish that it was the only means by which a provider could avail themselves of the section 1135 waiver, or that it was a requirement to obtain a waiver.  See CMS Br. at 7.  The statute reasonably indicates that CMS had the authority to grant Petitioner a waiver for temporary billing privileges, but CMS has explicitly chosen not to do so.  Petitioner’s decision to treat Medicare patients during the COVID-19 Public Health Emergency prior to approval of its Medicare application is laudable.  Nevertheless, Petitioner does not cite to, nor am I aware of, any authority permitting me to grant such a waiver in CMS’s stead or compelling CMS to grant Petitioner such a waiver.  My review is limited to the issues of whether summary judgment is appropriate, and whether the effective date of Petitioner’s enrollment in the Medicare program is October 27, 2021.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2); see also 42 U.S.C. § 1395cc(j)(8).  I have no authority to grant the equitable relief requested by Petitioner.  US Ultrasound, DAB No. 2302 at 7.

VII. Conclusion

For the foregoing reasons, I affirm the determination of CMS to establish October 27, 2021 as the effective date for Petitioner’s provider agreement, enrollment in Medicare, and billing privileges.