Mary Margaret Kober, M.D., DAB CR6337 (2023)

DECISION

Petitioner, Mary Margaret Kober, M.D., challenges the determination of her 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’s effective date determination.

I. Background

On October 23, 2020, Petitioner electronically filed a CMS Form 855R to reassign her Medicare billing privileges to her practice, Advanced Dermatology Skin Cancer & Laser Surgery Center, P.C.  CMS Ex. 9.  Novitas advised Petitioner on October 29, 2020 that to reassign her benefits, she first needed to individually enroll as a biller to the Medicare program using CMS Form 855I.¹  CMS Ex. 10.

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Petitioner submitted the CMS 855I form but incorrectly listed her date of birth.  CMS Ex. 11 at 7.  Novitas asked Petitioner to correct this error as well as provide additional information.  CMS Exs. 12, 13.  Novitas also requested additional information relating to her reassignment application.  CMS Ex. 17.  Petitioner provided the additional information needed for her individual enrollment application, CMS Ex. 18, but did not timely resubmit the certification demanded by Novitas for her reassignment application, resulting in Novitas’s denial of her October 23, 2020 reassignment application on December 21, 2020.²  CMS Ex. 19.

On January 21, 2021, Petitioner electronically filed a new individual enrollment application.  CMS Ex. 1.  On January 26, 2021, Novitas requested additional information and revisions from Petitioner concerning her individual enrollment application and advised her to file a CMS Form 855R to process her reassignment request.  CMS Ex. 2.  Petitioner submitted that reassignment application on February 10, 2021.  CMS Ex. 4.  Novitas approved Petitioner’s application for enrollment and reassignment of her billing privileges on February 15, 2021 and granted Petitioner billing privileges from October 23, 2020.³  CMS Ex. 5.

Petitioner sought reconsideration of Novitas’s effective date determination, asking that her enrollment and reassignment be effective from September 17, 2020.  CMS Ex. 6.  In a reconsidered determination dated May 14, 2021, Novitas affirmed its initial effective date determination and clarified Petitioner received the maximum period of retrospective billing Novitas could issue.  CMS Ex. 8.

Petitioner timely filed a request for hearing in the Civil Remedies Division resulting in my designation to hear and decide this case.  On July 26, 2021, 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 19 proposed exhibits (CMS Exs. 1-19).  Petitioner filed a response in opposition to CMS’s motion for summary judgment on October 4, 2021 (P. Br.).  CMS filed a reply on

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October 12, 2021 (CMS Reply).  Petitioner filed a response to CMS’s Reply on October 14, 2021 (P. Sur-reply).

II. Admission of Exhibits

Petitioner did not object to CMS’s proposed exhibits.  I admit CMS Exhibits 1 through 19 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; 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.

IV. Issue

Whether Novitas, acting on behalf of CMS, properly established January 21, 2021 as Petitioner’s effective date of enrollment and reassignment of her Medicare billing privileges.

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).

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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).  The “date of filing” is the date that the Medicare contractor “receives” a signed enrollment application that the Medicare contractor can process 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 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 enrollment and reassignment of Medicare billing privileges is January 21, 2021, the date Petitioner submitted an individual enrollment application Novitas processed to approval.

Petitioner submitted an individual enrollment application that was processed to approval on January 21, 2021.  CMS Ex. 1.  The record before me does not reflect receipt of an earlier application subsequently approved by Novitas.  January 21, 2021 is therefore the correct effective date of enrollment and 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 October 23, 2020, or 90 days before the effective date of reassignment.  CMS Ex. 5 at 1; 42 C.F.R. § 424.521(a)(1)(ii).⁴

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2. I have no authority to review Novitas’ decision to reject Petitioner’s prior enrollment and reassignment applications or otherwise provide her equitable relief.

Petitioner explains her earlier individual enrollment application was unsuccessful because of difficulties related to the COVID-19 pandemic and because of poor instructions provided to her by Novitas.  P. Br. at 7.  She also compellingly points out that Novitas denied her otherwise valid individual enrollment because of issues with her reassignment application.  P. Sur-reply at 2.  But whatever the merits of Petitioner’s arguments, I am unable to review Novitas’s decision to reject Petitioner’s initial applications because these denials are not initial determinations within my jurisdiction.  42 C.F.R. § 498.3(b).  Petitioner may not “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).

I am sympathetic to Petitioner’s efforts to comply with Novitas’s development requests, some of which appear unreasonable, such as the frequent demands for newly signed certifications to accompany any slight revision to her application.  Nor do I see the rationale for denying an otherwise valid individual enrollment application merely because a related reassignment application is defective.  But even if the equities favor Petitioner here, her request to modify the effective date of enrollment established by CMS because of extenuating circumstances 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 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 enrollment and reassignment applications under 42 C.F.R. § 424.520(d).  As I have explained, Novitas properly determined the effective date of Petitioner’s enrollment and reassignment to be January 21, 2021, as that is the date Novitas received an application it successfully processed to completion.  In addition, Petitioner received 90 days of retrospective billing privileges from October 23, 2020, the maximum period that could result from the application she filed on January 21, 2021.  42 C.F.R. § 424.521(a)(1)(ii).

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VII.     Conclusion

For the foregoing reasons, I affirm CMS’s determination of the effective date of Petitioner’s Medicare billing privileges to be January 21, 2021, with retrospective billing permitted from October 23, 2020.

Endnotes

¹  CMS clarified in its reply that Petitioner was not a new biller to the Medicare program but had been previously enrolled in Florida and Georgia under a different administrative contractor.  CMS Reply at 1 n.1.  Because Petitioner sought to reassign her billing privileges for the first time through Novitas, CMS required her to file a new individual enrollment application.  Id. at 2.

²  For reasons CMS does not make clear, Novitas appears to have denied Petitioner’s individual enrollment application as well, citing two different reference numbers in the denial of her reassignment application (presumably relating to both applications pending before Novitas) and stating that if she wished to resubmit her reassignment application, she would also have to “complete a new Medicare enrollment application(s).”  CMS Ex. 19 at 1.

³  Novitas mistakenly identifies October 23, 2020 as the “effective date” of Petitioner’s reassigned billing privileges.  CMS Ex. 5 at 1.  But the regulations distinguish between the effective date and the date from which retrospective billing is permitted.  See 42 C.F.R. §§ 424.520(d), 424.521(a)(1).  Consistent with 42 C.F.R. § 424.520(d), 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.

⁴  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 period of retrospective billing permitted by the regulation.