Shannon Detty, M.D., DAB CR6358 (2023)

DECISION

Petitioner, Shannon Detty, 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 July 6, 2020, Novitas received a CMS Form 855R mailed by Petitioner to reassign her Medicare billing privileges to her practice, Advanced Dermatology Skin Cancer & Laser Surgery Center, P.C.  CMS Ex. 1.  Dr. Detty indicated her Medicare Identification Number (PTAN) was pending, meaning she had concurrently applied to enroll as a new supplier to the Medicare program.¹  Id. at 3.  She identified practice manager Heather Delgado as the primary contact person for her reassignment application.  Id. at 4.

Two days later, Novitas rejected Petitioner’s reassignment application because she had used an outdated version of the form.  CMS Ex. 2.  Petitioner mailed a CMS Form 855I individual enrollment application received by Novitas on July 24, 2020.  CMS Ex. 3.  She

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submitted a second CMS Form 855R reassignment application received by Novitas on July 29, 2020, naming Heather Delgado as a delegated official.  CMS Ex. 4.

On August 4, 2020, Novitas asked Petitioner to make corrections to her reassignment application, noting it required Ms. Delgado’s name and signature because she had not been previously authorized as a delegated official for Advanced Dermatology.  CMS Ex. 5 at 1.  Novitas also required Petitioner to resubmit a signed and dated certification statement.  Id.

Petitioner mailed a third reassignment application identifying Ms. Delgado as a delegated official received by Novitas on August 21, 2020.  CMS Ex. 6 at 8.  Five days later, Novitas received a CMS Form 855B submitted by Advanced Dermatology naming Ms. Delgado as its delegated official.  CMS Ex. 7 at 20.  Novitas rejected Petitioner’s individual and reassignment applications on September 28, 2020, claiming she failed to provide the printed name, signature, and signature date for Ms. Delgado in her reassignment application.  CMS Ex. 8.²

Petitioner did not submit her fourth reassignment and second individual enrollment applications until February 12 and February 17, 2021, respectively.  CMS Ex. 9; CMS Ex. 10.  On February 17, 2021, Novitas notified Petitioner it required her to submit a new certification page for her reassignment application because she submitted it before her individual enrollment application.  CMS Ex. 11.  Petitioner submitted a revised reassignment application that same day.  CMS Ex. 14.

Novitas approved Petitioner’s applications for initial enrollment and reassignment of her billing privileges on February 23, 2021, identifying her effective date of reassignment to be November 14, 2020.³  CMS Ex. 15.

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Petitioner sought reconsideration of Novitas’ determination and asked that her enrollment and reassignment be made effective from July 27, 2020.  CMS Ex. 16.  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. 18 at 2-3.

Petitioner timely filed a request for hearing before an Administrative Law Judge 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 18 proposed exhibits (CMS Exs. 1-18).  Petitioner filed a response in opposition to CMS’s motion for summary judgment on October 4, 2021 (P. Br.).  CMS filed a reply on October 6, 2021 (CMS Reply).  With its reply, CMS filed an additional proposed exhibit (CMS Ex. 19), though it did not seek leave to do so.

II.       Admission of Exhibits

Petitioner did not object to CMS’s proposed exhibits.  I admit CMS Exhibits 1 through 18 into evidence.  I reject CMS Exhibit 19 and order it stricken from the record.  CMS failed to seek leave to submit evidence after its time to do so had closed.  Pre-Hearing Order at ¶ 6(e) (“Neither party may supplement its pre-hearing exchange absent a showing of good cause.”).

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 at ¶ 14; Civ. Remedies Div. P. §§ 16(b), 19(b).  I therefore decide this case based on the record before me and 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 February 12, 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)).

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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).

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.

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B. Analysis

1. The effective date of Petitioner’s enrollment and reassignment of Medicare billing privileges is February 12, 2021, the date Petitioner submitted an individual enrollment application Novitas processed to approval.

Petitioner submitted an individual enrollment application that Novitas processed to approval on February 12, 2021.  CMS Ex. 9; CMS Ex. 10; CMS Ex. 15.  The record before me does not reflect receipt of an earlier application subsequently approved by Novitas.  February 12, 2021 is therefore the correct effective date of enrollment and reassignment for Petitioner’s billing privileges.⁴  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.

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 argues Novitas improperly denied her otherwise valid July 24, 2020 individual enrollment application because of issues with her July 29, 2020 reassignment application.  P. Br. at 5-6, 6-7.  Petitioner also argues Novitas’ rejection of her July 29, 2020 reassignment application was improper pursuant to 42 C.F.R. § 424.516, which would have allowed her 90 days to provide corrections.  Id. at 6.  Petitioner’s objections to Novitas’ rejection of her July 2020 individual enrollment and reassignment applications are compelling.  But whatever their merits, I am unable to review Novitas’ decision to reject Petitioner’s 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 consistent efforts to comply with Novitas’ 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

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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 through its contractor 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] 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 February 12, 2021, the date Novitas received an application it successfully processed to completion.  In addition, Petitioner received 90 days of retrospective billing privileges from November 14, 2020, the maximum period that could result from the February 12, 2021 effective date.  42 C.F.R. § 424.521(a)(1)(ii).

VII.    Conclusion

For the foregoing reasons, I affirm CMS’s determination of the effective date of Petitioner’s Medicare billing privileges to be February 12, 2021, with retrospective billing permitted from November 14, 2020.

Endnotes

¹ No such individual enrollment application is evident from the record.  

² Novitas 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. 8 at 1.  CMS claims this resulted from Petitioner’s failure to submit yet another reassignment application form after Advanced Dermatology identified Ms. Delgado as a delegated official.  CMS Br. at 3-4.  But the notice from Novitas provides no such explanation.  CMS Ex. 8.

³ Novitas mistakenly refers to November 14, 2020 as the “effective date” of Petitioner’s reassigned billing privileges.  CMS Ex. 15 at 1; see also CMS Br. at 4 (acknowledging Novitas granted retrospective billing privileges from this date.).  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 Consistent with 42 C.F.R. § 424.521(a)(1)(ii), Novitas also granted Petitioner retrospective billing beginning November 14, 2020, or 90 days before her effective date of reassignment.  CMS Ex. 15 at 1.  This regulation allows CMS to allow 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).  The 90-day retrospective billing period afforded to Petitioner by Novitas is the maximum period of retrospective billing permitted by the regulation.