Exceptional Health Care Maricopa LLC, A Texas LLC d/b/a Maricopa Community Hospital, DAB CR6338 (2023)

DECISION

The effective date of Petitioner’s provider agreement, enrollment in Medicare, and Medicare billing privileges is June 21, 2022. 

I.  BACKGROUND AND UNDISPUTED FACTS

Petitioner is a hospital located in Maricopa, Arizona.  It is undisputed that on December 20, 2021, the Arizona Department of Health Services (the state agency) conducted an initial onsite survey of Petitioner for state licensing purposes.  The report of the survey indicates that the survey was conducted using the rules found in the Arizona Administrative Code applicable to licensing hospitals in Arizona.  Petitioner’s Exhibit (P. Ex.) A at 7; Centers for Medicare & Medicaid Services (CMS) Exhibit (CMS Ex.) 1 at 39.  No deficiencies were identified during the survey.  On December 23, 2021, the state agency granted Petitioner a license to operate as a special hospital with nine beds effective December 20, 2021.  P. Ex. A at 8-9; CMS Ex. 1 at 40-41.

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Noridian Healthcare Solutions, a Medicare administrative contractor (MAC), received Petitioner’s initial Medicare enrollment application on January 21, 2022.  CMS Ex. 1 at 42.  The MAC requested changes to Petitioner’s application on January 25 and February 22, 2022.  CMS Ex. 1 at 34-37.  Petitioner submitted those changes on February 21 and 25, 2022.  CMS Ex. 1 at 42.  On February 28, 2022, the MAC advised Petitioner that its enrollment application was forwarded to CMS for final review.  CMS Ex. 1 at 32, 42-52. 

The Joint Commission, an organization authorized to conduct surveys for Medicare accreditation purposes, conducted an on-site inspection survey of Petitioner’s hospital from June 1 through 3, 2022.  The Joint Commission determined that, effective June 21, 2022, after a submission by Petitioner, that Petitioner met all requirements established by 42 C.F.R. pt. 482¹ for a hospital to participate in Medicare.  The Joint Commission also informed Petitioner that it would recommend to CMS that Petitioner be enrolled in Medicare effective June 21, 2022.  CMS Ex. 1 at 16-30.  

On August 25, 2022, the MAC issued its initial determination approving Petitioner’s Medicare enrollment and billing privileges effective June 21, 2022.  CMS Ex. at 11-13. 

Petitioner requested reconsideration of the effective date of Medicare enrollment and billing privileges by letter dated September 21, 2022.  Petitioner urged CMS to change the effective date of its Medicare enrollment and billing privileges to December 20, 2021, the date the state agency completed its licensing survey of Petitioner, the effective date of Petitioner’s state hospital license, and the date Petitioner began providing hospital services.  Petitioner argued it provided services acting in good faith on the belief that CMS would accept the state agency survey as establishing that Petitioner met all hospital conditions of participation.  CMS Ex. 1 at 9-10.²

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On December 9, 2022, CMS issued a reconsidered determination upholding the MAC’s initial determination that June 21, 2022, was the effective date of Petitioner’s Medicare enrollment and billing privileges.  The hearing officer concluded that because The Joint Commission found that Petitioner did not meet federal conditions of participation during the survey completed on June 3, 2022, CMS could not confirm Petitioner met conditions of participation before June 21, 2022, the date recommended by The Joint Commission.  The hearing officer also found that Petitioner failed to submit its enrollment application through the Medicare Provider Enrollment Hotline, making Petitioner ineligible for temporary billing privileges prior to June 21, 2022.  CMS Ex. 1 at 1-7.  

On January 1, 2023, Petitioner filed its request for hearing (RFH) before an administrative law judge (ALJ).  The case was docketed and assigned to me for hearing and decision on January 10, 2023, and an Acknowledgement Letter and Standing Order (Standing Order) were issued. 

On February 9, 2023, CMS filed its prehearing brief and motion for summary judgment (CMS Br.) with CMS Ex. 1.  Petitioner has not objected to my consideration of CMS Ex. 1 and it is admitted as evidence.  Petitioner filed a response in opposition to the CMS motion for summary judgment and a cross-motion for summary judgment on February 21, 2023 (P. Br.), with a document marked and described as Petitioner’s exhibit (P. Ex.) A.  CMS has not objected to my consideration of P. Ex. A, and it is admitted as evidence.  On March 27, 2023, CMS filed a reply to Petitioner’s cross-motion (CMS Reply). 

On March 31, 2023, Petitioner filed a motion described as a motion to strike the CMS reply or, in the alternative, response in support of Petitioner’s cross-motion for summary judgment (P. Reply).  Petitioner moved to strike the CMS reply on grounds it was untimely.  The motion to strike is denied because the CMS reply was not untimely filed.  Under the Standing Order ¶ D.3, CMS’s reply to Petitioner’s exchange of its prehearing brief, exhibits, and any motion for summary judgment, was due 75 days from the date of the January 10, 2023 Acknowledgment Letter, which would have been Sunday, March 26, 2023.  Because the due date fell on a Sunday, the CMS reply was due March 27, 2023, the next business day.  Civil Remedies Division Procedures (CRDP) § 11a.  Therefore, the CMS reply filed on March 27, 2023, was not untimely.  However, Petitioner’s March 31, 2023 filing is accepted for its alternate purpose as a reply in support of its cross-motion for summary judgment.

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Petitioner also filed on March 31, 2023, another document Petitioner described as exhibit A, which includes two pages that are duplicates of pages 6 and 7 (document page counter) of the original P. Ex. A.  Because the second exhibit A contains only duplicates of other evidence filed by Petitioner, it is cumulative and not admitted as evidence.  The original P. Ex. A was not properly marked by Petitioner in violation of the Standing Order ¶ I and the CRDP § 14c.  However, the improper marking causes no prejudice, and no correction or sanction is necessary.  P. Ex. A is admitted and considered as evidence.  Page citations to P. Ex. A are to the electronic document page counter. 

CMS sent Petitioner its provider agreement on July 25, 2022.  The effective date of the provider agreement was listed as June 21, 2022.  P. Ex. A at 10-11.  Petitioner’s provider agreement was signed by its chief operating officer on July 19, 2022, and on behalf of the Secretary of Health and Human Services (Secretary) on July 25, 2022.  P. Ex. A at 12. 

II.  DISCUSSION

A.  Applicable Law

The Medicare program is established by Title XVIII of the Social Security Act (Act) (42 U.S.C. §§ 1395-1395lll), and includes Medicare Parts A, B, C, and D.  The Medicare program pays for covered health care items and services furnished to Medicare beneficiaries by qualified providers and suppliers.³  Act §§ 1811-1860D-43.  Qualified providers and suppliers are those who have a provider agreement or supplier approval, if required; are enrolled in Medicare; and are granted billing privileges.  42 C.F.R. pt. 424, subpt. P; pt. 489. 

Congress required the Secretary to prescribe regulations for the administration of Medicare, Medicaid, and other federal health care programs.  Act §§ 1866(h)(1), (j)(1)(a), (8); 1871(a) (42 U.S.C. §§ 1395cc(h)(1), (j)(1)(a), 1395hh).  The Secretary’s regulations for entering agreements with providers are found at 42 C.F.R. pt. 489.  The provisions of 42 C.F.R. pt. 489 also apply to those suppliers who must be surveyed by CMS or the state

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or accredited by an authorized accrediting organization prior to being accepted for enrollment and participation in Medicare.  The conditions of participation for hospitals, such as Petitioner, are found at 42 C.F.R. pt. 482.  The basic requirements for participation as a provider are set forth at 42 C.F.R. § 489.10.  The regulations require that a state survey agency determine whether a provider meets the conditions for participation and make a recommendation to CMS.  42 C.F.R. § 489.10(d).  However, the regulation also allows a provider to be deemed to meet participation requirements based upon accreditation by an approved accrediting organization, such as The Joint Commission.  42 C.F.R. § 489.13(a)(ii).  If CMS determines that a provider meets the requirements for participation, CMS notifies the provider and includes two copies of the provider agreement that the provider must sign and return.  CMS then returns one copy of the provider agreement with a notice to the provider of the acceptance and effective date of the agreement.  42 C.F.R. § 489.11.  The effective date of the provider agreement is determined pursuant to 42 C.F.R. § 489.13.  The regulation states that this effective date may not be earlier than the latest date when CMS determines all applicable federal requirements are met.  42 C.F.R. § 489.13(b).  The regulation provides: 

(b)  All health and safety standards are met on the date of survey.  The agreement or approval is effective on 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.  (If the agreement or approval is time-limited, the new agreement or approval is effective on the day following the expiration of the current agreement or approval.)  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

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requirements for participation, the conditions for coverage, or the conditions for certification. 

42 C.F.R. § 489.13(b) (italics in original, bold added).  Some elaboration is appropriate for each requirement. 

(1)  The procedures for application to enroll in Medicare and to receive billing privileges as a provider or supplier are set forth in 42 C.F.R. pt. 424.  A provider or supplier must be enrolled in Medicare to receive billing privileges to file claims with Medicare and be paid for care and services for Medicare beneficiaries.  42 C.F.R. § 424.505.  The requirements for enrolling are at 42 C.F.R. § 424.510.  CMS does not enroll a provider or supplier who must be surveyed by the state agency until the survey is complete and the state agency certifies the provider or supplier meets participation requirements or conditions of participation or the provider or supplier receives accreditation from an authorized accrediting organization.  42 C.F.R. § 424.510(a)(1).  For providers or suppliers who are subject to 42 C.F.R. pt. 489, the effective date for billing privileges is determined under 42 C.F.R. § 489.13.  42 C.F.R. §§ 424.510(b)-(c), 424.520(a). 

(2)  The requirement for a survey is established by 42 C.F.R. § 489.10(d), with the alternative of accreditation established by 42 C.F.R. § 483.13(a)(1)(ii).  The provisions of 42 C.F.R. § 489.12 apply if CMS denies a provider agreement and are inapplicable in this case. 

(3)  The hospital conditions for participation that Petitioner must meet are at 42 C.F.R. pt. 428.  

Congress provided a right to a hearing on the record for certain enrollment determinations.  Act § 1866(h)(1), (j)(8).  The Secretary has issued regulations that establish the right to a hearing and judicial review of certain enrollment determinations.  Pursuant to 42 C.F.R. § 498.3(b)(15), the effective date of a provider agreement or supplier approval is an initial determination that is subject to administrative review by an ALJ after a reconsidered determination.  42 C.F.R. § 498.5(l)(1)-(2).  Appeal and review rights are specified by 42 C.F.R. § 498.5. 

The hearing before an ALJ is a de novo proceeding.  Anesthesiologists Affiliated, et al., DAB CR65 (1990), aff’d, 941 F.2d 678 (8th Cir. 1991); Emerald Oaks, DAB No. 1800 at 11 (2001); Beechwood Sanitarium, DAB No. 1906 (2004); Cal Turner Extended Care, DAB No. 2030 (2006); The Residence at Salem Woods, DAB No. 2052 (2006).  The Board has previously ruled upon the allocation of the burden of persuasion and the burden of coming forward with the evidence in cases subject to 42 C.F.R. pt. 498.  The Board has held that CMS must make a prima facie showing of the basis for its action.  “Prima facie” means that the evidence is “(s)ufficient to establish a fact or raise a

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presumption unless disproved or rebutted.”  Black’s Law Dictionary 1228 (8th ed. 2004); see also Hillman Rehabilitation Ctr., DAB No. 1611 at 8 (1997), aff’d Hillman Rehabilitation Ctr. v. U.S. Dept. of Health and Human Services, No. 98-3789 (GEB), slip op. at 25 (D.N.J. May 13, 1999).  To prevail, a petitioner must overcome CMS’s showing by a preponderance of the evidence.  Batavia Nursing and Convalescent Ctr., DAB No. 1904 (2004); Batavia Nursing and Convalescent Inn, DAB No. 1911 (2004) aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 Fed. Appx. 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001); Cross Creek Health Care Ctr., DAB No. 1665 (1998); Hillman Rehabilitation Ctr., DAB No. 1611. 

B.  Issues

The issues in this case are: 

Whether summary judgment is appropriate;

Whether the effective date of Petitioner’s provider agreement, enrollment in Medicare, and billing privileges may or should be changed from June 21, 2022 to December 20, 2021.⁴ 

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

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

1.  Summary judgment is appropriate in this case.

Petitioner is entitled to a hearing on the record before an ALJ under the Act.  Act §§ 205(b); 1866(h)(1), (j)(8); Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004).  However, when summary judgment is appropriate, no hearing is required.  The Board has long accepted that summary judgment is an acceptable

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procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498.  See, e.g., Crestview Parke, 373 F.3d at 748-51; Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997).  The Board has accepted that Fed. R. Civ. P. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate.  I advised the parties in the Standing Order that summary judgment is an available procedural device and that the law as it has developed related to Fed. R. Civ. P. 56 will be applied.  Standing Order ¶¶ D, G.  Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law.  See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 5 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 5 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein). 

CMS requested summary judgment.  Petitioner opposes summary judgment for CMS but requests summary judgment in its favor.  The material facts are not in dispute.  Petitioner’s Arizona license to operate as a special hospital was effective on December 20, 2021, based on a survey by the state agency that found no deficiencies under the Arizona Administrative Code applicable to hospitals.  CMS Ex. 1 at 38-41; P. Ex. A at 6-9.  The Joint Commission completed a certification survey of Petitioner from June 1 through 3, 2022.  The Joint Commission determined Petitioner was in compliance with federal conditions of participation as of June 21, 2022.  CMS Ex. 1 at 4, 16-30.  The law is clear that CMS could not enter a provider agreement with Petitioner or enroll Petitioner in Medicare and grant billing privileges until CMS determined that Petitioner met all the federal conditions of participation and enrollment requirements.  42 C.F.R. § 482.10(a), (d).  It is undisputed that the state agency survey on December 20, 2021, determined Petitioner was in compliance with state requirements of licensing.  There is no evidence that the state agency considered whether Petitioner met the conditions of participation of 42 C.F.R. pt. 482, only Petitioner’s arguments, unsupported by any affidavit or declaration from a state surveyor or other knowledgeable individual that state licensing requirements are the same as the federal conditions of participation.  Petitioner’s arguments that it was entitled to have the state survey agency conduct its federal compliance survey and the implication that CMS is required to accept the December 20, 2021 state agency survey as establishing Petitioner’s compliance with federal conditions of participation must be resolved against Petitioner as a matter of law.  Petitioner’s other arguments must also be resolved against Petitioner as matters of law.  Accordingly, I conclude summary judgment in favor of CMS is appropriate, the CMS motion for summary judgment is granted, and Petitioner’s cross-motion for summary judgment is denied.  CMS Ex. 1 at 17.

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2.  The effective date of Petitioner’s provider agreement, enrollment in Medicare, and billing privileges is June 21, 2022, the date Petitioner was determined to meet all federal requirements by CMS. 

The analysis is uncomplicated.  The undisputed material facts are: 

On December 20, 2021, the state agency conducted an initial licensing survey of Petitioner.  The state agency found no deficiencies during the survey.  Petitioner was granted an Arizona license to operate as a special hospital of nine beds effective December 20, 2021.  CMS Ex. 1 at 38-41; P. Ex. A at 6-9.  It is not disputed that the survey document shows that the survey was a state initial licensing survey based on rules found in the Arizona Administrative Code, except that a CMS focused infection control survey was also conducted using the CMS survey tool.  CMS Ex. 1 at 39; P. Ex. A at 7. 

Petitioner subsequently applied to enroll in Medicare as a hospital, i.e., as a provider.  The MAC received Petitioner’s Medicare enrollment application on January 21, 2022.  Petitioner’s application required corrections which were received by the MAC on February 21 and 25, 2022.  The MAC forwarded Petitioner’s enrollment application to CMS on February 28, 2022, for final review.  CMS Ex. 1 at 32, 34-37, 42-52. 

The Joint Commission conducted its survey of Petitioner from June 1 through 3, 2022, to determine whether it would accredit Petitioner as meeting all federal conditions of participation under 42 C.F.R. pt. 482.  On June 22, 2022, The Joint Commission notified Petitioner that it found Petitioner met all conditions of participation effective June 21, 2022, and that it was recommending to CMS that Petitioner be enrolled in Medicare effective that date.  CMS Ex. 1 at 16-30. 

Petitioner entered a provider agreement with the Secretary that was signed by its chief operating officer on July 19, 2022, and on behalf of the Secretary on July 25, 2022.  P. Ex. A at 12.  The effective date of the provider agreement was listed as June 21, 2022.  P. Ex. A at 10-11. 

The MAC notified Petitioner on August 25, 2022, that its Medicare enrollment and billing privileges were approved effective June 21, 2022.  CMS Ex. 1 at 11-13. 

Petitioner must meet all conditions of participation established by the Secretary under 42 C.F.R. pt. 482 and other enrollment requirements to be accepted for participation in Medicare.  42 C.F.R. § 489.10(a).  The state agency is required to determine whether Petitioner meets the conditions of participation and then recommends to CMS whether Petitioner should be granted a provider agreement, enrolled in Medicare, and granted billing privileges.  42 C.F.R. § 489.10(c).  However, the Secretary and his delegee CMS,

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may accept accreditation by a national accreditation body such as The Joint Commission, as showing a provider such as Petitioner meets all conditions of participation.  Act § 1865(a); 42 C.F.R. § 489.13(a)(1)(ii).  In this case, Petitioner was surveyed by the state agency, but that survey was to determine whether Petitioner met the requirements to be licensed as a hospital in Arizona.  Petitioner does not dispute that was the purpose of the state agency survey or that Petitioner had not yet applied to enroll in Medicare.  Petitioner was surveyed by The Joint Commission to determine if Petitioner met all conditions of participation under 42 C.F.R. pt. 482, not the state agency.  The Joint Commission survey was not conducted until June 1 through 3, 2022.  

Pursuant to 42 C.F.R. § 489.13(b) and (c), the effective date of Petitioner’s provider agreement, enrollment in Medicare, and billing privileges cannot be before it is determined by CMS that Petitioner met all conditions of participation as a hospital under 42 C.F.R. pt. 482, as well as the enrollment requirements of 42 C.F.R. pt. 424 and 42 C.F.R. §§ 489.10 and 489.12.  The Joint Commission determined that Petitioner met the conditions of participation on June 21, 2022, rather than June 3, 2022, the last day of the survey.  Therefore, as a matter of law, pursuant to 42 C.F.R. § 489.13(b) and (c)(2), the effective date of Petitioner’s provider agreement, Medicare enrollment, and billing privileges is June 21, 2022, the date CMS determined based on The Joint Commission Accreditation, that Petitioner met all conditions of participation and other enrollment requirements. 

Petitioner argues that the effective date of its provider agreement, enrollment in Medicare, and billing privileges should be December 20, 2021, the date the state agency completed its survey of Petitioner and the effective date of its Arizona hospital license.  Petitioner states, and I accept for purposes of summary judgment, that it opened its hospital on December 22, 2021 and began seeing Medicare beneficiaries. 

Petitioner argues that the survey conducted by the state agency on December 20, 2021, covered all the items required by federal law for approval of Petitioner’s participation in Medicare.  Petitioner asserts it was “entitled” to use the state agency survey to meet the survey requirement of 42 C.F.R. § 489.13(a)(1)(i).  P. Br. at 3-4.  Petitioner argues that the requirements a hospital must meet for licensing in Arizona found in Ariz. Admin. Code §§ R9-10-201 through R9-10-235⁵ are the same as the conditions of participation promulgated by the Secretary in 42 C.F.R. pt. 482.  Petitioner argues, therefore, that the state agency survey using the Arizona Administrative Code rather than 42 C.F.R. pt. 482 should be acceptable to CMS for purpose of enrolling Petitioner in Medicare.  P. Br. at 4-

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13.  I accept, for purposes of summary judgment, that the Ariz. Admin. Code §§ R9-10-201 through R9-10-235 include requirements that are substantially like the requirements of 42 C.F.R. pt. 482.  However, the state agency survey on December 20, 2021, was for the purpose of determining whether Petitioner met state licensing requirements and not for certification that Petitioner met federal conditions of participation.  An appellate panel of the Board has previously concluded that under such circumstances the state licensing survey is not an adequate substitute for “survey findings made by or on behalf of CMS conclusively establishing a provider’s compliance with all of the federal conditions and standards set forth under the relevant regulations.”  Oklahoma Heart Hospital, DAB No. 2183 at 12 (2008).  Petitioner correctly notes (P. Reply at 3-4) that the Board decision in Oklahoma Heart Hospital discussed an earlier version of 42 C.F.R. § 489.13.  However, 42 C.F.R. § 489.13 was amended in 2010 to clarify that a provider may not bill for care and services provided before CMS determines that all applicable federal requirements are met.  CMS explained in rulemaking that eliminated 42 C.F.R. § 489.13(d) and reorganized the remainder of the section to eliminate and clarify provisions that caused the Board confusion in a separate case: 

[T]he intent of the existing regulations is to require that all applicable Federal requirements, including a determination of whether the enrollment requirements have been satisfied, must be met before a provider agreement or supplier approval may be effective.  Any other reading of the regulations could result in a provider or supplier being permitted to bill the Medicare program for services provided at a time when its compliance with Medicare’s requirements is unknown and possibly deficient.  For example, in the event a State survey precedes the CMS contractor’s review of the enrollment application of a prospective provider or supplier, it might be possible that the application originally submitted to the CMS contractor is not complete or accurate, or both, and the applicant must provide additional information to the CMS contractor to demonstrate compliance with the enrollment requirements.  It would not be consistent with our duty to protect the Medicare Trust Funds from unsupported claims against it to permit payment for services furnished by a health care facility after it has passed a State survey or been accredited, but before it has satisfied all other Medicare participation requirements, including enrollment requirements. 

75 Fed. Reg. 50,041, 50,402 (Aug. 16, 2010).  The 2010 change to 42 C.F.R. § 489.13 eliminated any confusion about the possibility of retroactive certification of a provider and retroactive billing, which were implied to be possible in the Board’s decisions in

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Puget Sound Behavioral Health, DAB No. 1944 (2004) and Renal Care Partners of Delray Beach, LLC, DAB No. 2271 (2009).  CMS has made it clear that the regulations do not grant CMS discretion to base an effective date on the date a provider meets state licensure requirements even though the state agency conducted the licensure survey.  However, even if CMS could accept the state agency licensing survey in this case as evidence that Petitioner met the conditions of participation of 42 C.F.R. pt. 489, Petitioner’s effective date of its provider agreement, Medicare enrollment and billing privileges could still be no earlier than June 21, 2022, because that is the date on which CMS concluded Petitioner met all federal requirements as required by 42 C.F.R. § 489.13(b) and (c) and based on the amendment of 42 C.F.R. § 489.13, now there is clearly no provision for retroactive billing.⁶

Petitioner argues that the COVID-19 pandemic prevented The Joint Commission survey and certification to occur before June 2022.  Petitioner also argues that if upheld, the June 21, 2022 effective date deprives Petitioner of compensation for care and services it provided during the COVID-19 pandemic.  P. Br. at 13-14; P. Reply at 2, 4-5; CMS Ex. 1 at 9-10; P. Ex. A at 4-5; RFH.  Petitioner cites no legal authority that permits changing Petitioner’s effective date for either reason.  Petitioner’s arguments may be construed to be requests for equitable relief.  However, I have no authority to grant equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010).  I am bound to follow the Act and regulations, and I have no authority to declare statutes or regulations invalid or ultra vires.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (noting that “[a]n ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground.”). 

Petitioner asserts that it was assured by the state health department that the effective date of its enrollment would be backdated.  RFH at 1.  In its September 21, 2022, request for reconsideration, Petitioner represented it opened and began to provide service on December 20, 2021.  Petitioner asserts it acted in good faith treating Medicare beneficiaries believing that CMS would accept the state agency survey as evidence that Petitioner met conditions of participation and could receive payment from Medicare.  Petitioner did not state who made such a representation to Petitioner.  CMS Ex. 1 at 9-10.  In its request for reconsideration dated September 27, 2022, Petitioner also requested that

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its effective date be December 20, 2021.  Petitioner asserts it began seeing Medicare beneficiaries pending final CMS certification because the MAC “confirmed to [Petitioner] multiple times that the effective date would be the date of the [state agency] survey.”  P. Ex. A at 4-5.  Petitioner’s arguments may be construed to be that CMS should be estopped from revoking Petitioner’s Medicare enrollment and billing privileges.  However, estoppel against the federal government, if available at all, is presumably unavailable absent “affirmative misconduct,” such as fraud.  See, e.g., Pac. Islander Council of Leaders, DAB No. 2091 at 12 (2007); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421-22 (1990).  Petitioner points to no evidence of affirmative misconduct such as fraud by the MAC or CMS. 

III.  CONCLUSION

For the foregoing reasons, the effective date of Petitioner’s provider agreement, Medicare enrollment, and billing privileges is June 21, 2022.

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Endnotes

¹  Citations are to the 2021 revision of the Code of Federal Regulations (C.F.R.), which was in effect at the time of the initial determination, unless otherwise indicated.  An appellate panel of the Departmental Appeals Board (Board) concluded in Mark A. Kabat, D.O., DAB No. 2875 at 9-11 (2018) that the applicable regulations are those in effect at the time of the initial determination.  The Board previously concluded that the only determination subject to my review in a provider and supplier enrollment case such as this is the reconsidered determination.  Neb Group of Ariz. LLC, DAB No. 2573 at 7 (2014).

²  P. Ex. A includes a document dated September 27, 2022, signed by an attorney representing Petitioner, that requests reconsideration of the MAC’s initial determination.  P. Ex. A at 4-5.  This letter is not included in the documents filed as CMS Ex. 1, which should include all documents listed by the hearing officer on reconsideration.  The letter is also not listed in the reconsidered determination as an exhibit.  CMS Ex. 1 at 2.  Although the letter marked P. Ex. A at 4-5 may not have been considered by the reconsideration hearing officer, I consider the letter as further evidence of Petitioner’s arguments when reconsideration was requested.

³  A “supplier” furnishes services under Medicare and includes physicians or other practitioners and facilities that are not included within the definition of the phrase “provider of services.”  Act § 1861(d) (42 U.S.C. § 1395x(d)).  A “provider of services,” commonly shortened to “provider,” includes hospitals, critical access hospitals, skilled nursing facilities, comprehensive outpatient rehabilitation facilities, home health agencies, hospice programs, and a fund as described in sections 1814(g) (42 U.S.C. § 1395f(g)) and 1835(e) (42 U.S.C. § 1395n(e)) of the Act.  Act § 1861(u) (42 U.S.C. § 1395x(u)).  Petitioner, a hospital, is a provider under the Act.

⁴  In its request for hearing, Petitioner stated it opened on December 22, 2021.  Petitioner requested that its “certification date,” by which I infer Petitioner meant its date of enrollment and billing privileges and the effective date of its provider agreement, be changed to December 21, 2021, because that is when Petitioner began seeing patients.  RFH.  In subsequent filings, Petitioner requests that its effective date of enrollment and billing privileges be changed to December 20, 2021.  P. Br., P. Reply.  There is no need to resolve the conflicting dates because Petitioner’s effective date is June 21, 2022, for reasons explained in this decision.

⁵  Available at https://apps.azsos.gov/public_services/Title_09/9-10.pdf. 

⁶  There is evidence that during the COVID-19 pandemic CMS adopted a procedure for a provider to establish interim billing privileges.  CMS Ex. 1 at 5, 53-60.  However, there is no evidence or allegation by Petitioner that it followed the procedure or requested interim or temporary billing privileges.  RFH, P. Br., P. Reply; CMS Ex. 1 at 9-10; P. Ex. A at 4-5.