Kivarkis Younan, M.D. / The Younan Group, PA, DAB CR6406 (2023)

DECISION

Petitioner, Kivarkis Younan, M.D./The Younan Group, PA, appeals the determination establishing the effective date of its enrollment and billing privileges as a Medicare supplier.  For the reasons explained below, I find that Novitas Solutions (Novitas), a Medicare administrative contractor for the Centers for Medicare & Medicaid Services (CMS), properly determined that the effective date of Petitioner’s billing privileges is August 24, 2022, with retrospective billing permitted as of May 26, 2022.

I.     Background

Kivarkis Younan, M.D., was enrolled in the Medicare program and had billing privileges since 1978.  On May 11, 2022, he submitted a CMS-855I form, seeking to enroll Petitioner in the Medicare program.  CMS Exhibit (Ex.) 1 at 4, 14, 56.  Specifically, the Medicare enrollment application sought to establish Kivarkis Younan, M.D.’s sole ownership under the legal business name, The Younan Group, PA.  Id. at 30; CMS Ex. 14 at 2.

By a development letter dated May 26, 2022, Novitas acknowledged receipt of the enrollment application but requested that Petitioner provide additional information and

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documentation to process Petitioner’s enrollment application.  CMS Ex. 2 at 1.  Novitas requested that Petitioner provide, inter alia, a valid national provider identifier (NPI) number, IRS documentation regarding Petitioner’s legal business name, and a complete Medicare participating agreement form.  Id.  Novitas noted that an application may be rejected if complete information was not furnished within 30 days of the date of the letter.  Id.

Petitioner did fax additional information to Novitas on June 3, 2022, June 10, 2022, June 17, 2022, and June 20, 2022.  CMS Exs. 3, 4, 5, 6.  However, on July 1, 2022, Novitas rejected Petitioner’s application because the “[Employer Identification Number (EIN)] in NPPES doesn't match the IRS document for THE YOUNAN GROUP PA, creating a system error message.”  CMS Ex. 8 at 1.

Petitioner subsequently submitted a new application for enrollment, which was received by Novitas on August 24, 2022.  CMS Ex. 9 at 60.  In a letter dated September 8, 2022, Novitas notified Petitioner that it had approved the “Change of information (COI) application” with an effective date of May 26, 2022.  CMS Ex. 10 at 1.

Petitioner filed a request for reconsideration on September 29, 2022, asserting that the effective date should be February 1, 2022.¹  CMS Ex. 13.  In a reconsideration determination dated December 15, 2022, Novitas found that, based on the CMS-855I Medicare enrollment application received on August 24, 2022, the effective date of Medicare billing privileges was August 24, 2022, and because the requirements for retrospective billing were met, a Medicare effective date of billing of May 26, 2022 was granted.  CMS Ex. 14.

Petitioner timely filed a request for hearing before an Administrative Law Judge (ALJ) on December 21, 2022.  CMS Ex. 15.  On December 22, 2022, ALJ Leslie A. Weyn issued an Acknowledgement Letter and a Standing Pre-Hearing Order (PHO).²  In response, CMS filed a prehearing brief with incorporated motion for summary judgment (CMS PH Br.), accompanied by 15 proposed exhibits (CMS Exs. 1-15).  Since Petitioner did not object to CMS’s proposed exhibits, I admit CMS Exs. 1-15 into the evidentiary record.  Petitioner filed a prehearing brief and incorporated opposition to the motion for summary judgment (P. PH Br.).  Petitioner did not file any proposed exhibits.

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An in-person hearing to cross-examine witnesses will be necessary only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine.  Neither party has submitted written direct testimony.  A hearing for the purpose of cross-examination is therefore unnecessary.  PHO §§ 10-11.  I consider the record in this case to be closed, and the matter is ready for a decision on the merits.  PHO § 12.³

II.    Issue

The issue in this case is whether Novitas, acting on behalf of CMS, properly established August 24, 2022, as Petitioner’s effective date for enrollment in Medicare, with retrospective billing privileges authorized from May 26, 2022.

III.   Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2); see also Social Security Act (Act) § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

IV.   Discussion

1. Applicable Authority

The Act authorizes the Secretary of Health and Human Services to promulgate regulations governing the enrollment process for providers and suppliers.  42 U.S.C. §§ 1302, 1395cc(j).  “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).  “Providers” include hospitals, skilled nursing facilities, and home health agencies.  42 U.S.C. § 1395x(u).

A provider or supplier that seeks billing privileges under Medicare must “submit enrollment information on the applicable enrollment application.”  42 C.F.R. § 424.510(a).  A “provider or supplier must submit a complete enrollment application and supporting documentation to the designated Medicare fee-for-service contractor,” and the application must include “[c]omplete, accurate, and truthful responses to all information requested within each section as applicable to the provider or supplier type.”  42 C.F.R. § 424.510(d)(1)-(2).  “Once the provider or supplier successfully completes the enrollment process, . . . CMS enrolls the provider or supplier into the Medicare program.”  42 C.F.R. § 424.510(a).

CMS “may reject” an application if a supplier “fails to furnish complete information on the provider/supplier enrollment application within 30 calendar days from the date of the

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contractor request for the missing information.”  42 C.F.R. § 424.525(a)(1); see also 42 C.F.R. § 424.502 (definition of Reject/Rejected).  CMS may “at its discretion, choose to extend the 30-day period [for submitting additional information] if CMS determines that the . . . supplier is actively working with CMS to resolve any outstanding issues.”  42 C.F.R. § 424.525(b) (emphasis added).  If CMS or its contractor rejects an enrollment application, the supplier must submit a new enrollment application.  42 C.F.R. § 424.525(c).  The decision by CMS or its contractor to reject an enrollment application is not subject to appeal.  42 C.F.R. § 424.525(d).

When CMS determines that a prospective supplier meets the applicable enrollment requirements, it grants Medicare billing privileges.  The effective date of the billing privileges for a supplier is the later of “the date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or (ii) [t]he date . . . the supplier first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d).  The relevant regulations further provide that CMS may permit a 30-day retroactive period of billing if the supplier has met all program requirements and if circumstances precluded enrollment in advance of providing services to Medicare beneficiaries, or CMS may allow a supplier to bill retrospectively for up to 90 days if a Presidentially-declared disaster precluded enrollment in advance of providing services.  42 C.F.R. § 424.521(a).

2. Findings of Fact and Conclusions of Law⁴
   1. Petitioner’s effective date of Medicare enrollment is August 24, 2022, with retrospective billing privileges as of May 26, 2022.

In this case, Novitas received an enrollment application from Petitioner on August 24, 2022 and this application was processed to approval.  Novitas appropriately found the effective date of Medicare billing privileges for Kivarkis Younan, M.D./The Younan Group, PA to be August 24, 2022, the date of the filing of the Medicare application that was subsequently approved by the contractor.  Timothy Onyiuke, DAB No. 3092 at 2 (2023); CMS Ex. 9 at 60; CMS Ex. 10.  Novitas also correctly found that Petitioner qualified for retrospective billing privileges up to 90 days, resulting in an effective retrospective billing date of May 26, 2022, under the provisions of 42 C.F.R. § 424.521(a)(ii), pursuant to an emergency declaration issued under the Robert T. Stafford Disaster Relief and Emergency Assistance Act to declare a national health emergency.  42 U.S.C. §§ 5121-5206.  Thus, under the above regulations, based on the application that was processed to approval, Petitioner’s billing privileges can begin no earlier than the dates cited above.

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2. I have no authority to review Novitas’ rejection of Petitioner’s May 11, 2022 enrollment application.

Petitioner argues that I should grant it an effective enrollment date of May 11, 2022, with an additional 90-day retrospective billing period.  P. PH Br. at 4.  It asserts that it received a request from CMS for additional information, including a valid NPI and IRS documentation.  P. PH Br. at 2.  Petitioner stated it submitted a new NPI and a 2016 letter from the IRS indicating its EIN.  With the submission of this information, Petitioner believed it had provided all of the requested information, only to discover that it had mistakenly provided an incorrect EIN with its June 3, 2022 response.  P. PH Br. at 2-3.  It suggests that CMS was not clear in its requests for information, asking for NPI information when the specific issue was with the EIN.  Id. at 3-4.  Finally, it asserts that the rejection of the May 11, 2022 enrollment application was capricious and that the application could have been processed to approval.  Id. at 3-4.

It is clear that Petitioner made good faith efforts to comply with the development requests.  It is also clear that some of the communication from Novitas appeared to contain inaccurate information, such a reference to a CMS-855B application received on June 2, 2022.  CMS Ex. 7.  Dr. Younan’s name was consistently misspelled on the mandated fax sheets, despite numerous corrections by Petitioner.  CMS Ex. 5 at 1; CMS Ex. 6 at 1; CMS Ex. 7 at 1.  Unfortunately for Petitioner, none of these considerations are relevant.

The effective date of Medicare billing privileges is the “date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor.”  42 C.F.R. § 424.520(d)(1) (emphasis added).  In order to find an enrollment date of May 11, 2022, and the retrospective billing date of February 11, 2022 sought by Petitioner, the application received on May 11, 2022 would have had to have been approved by Novitas.  It was not approved.  Rather, it was rejected by Novitas because of inconsistencies in the EIN numbers provided as part of the development requests.  CMS Ex. 8 at 1.  Enrollment applications that are rejected are not afforded appeal rights.  42 C.F.R. § 424.525(d).  By regulation, the remedy for a rejected application is to submit a new enrollment application.  42 C.F.R. § 424.525(c).  I cannot grant a May 11, 2022 effective date for Petitioner’s Medicare enrollment unless I set aside Novitas’ rejection of that enrollment application.  I have no authority to do so under the provisions of 42 C.F.R. § 424.525(d).

3. Petitioner’s equitable arguments are not a basis to grant an earlier effective date of Medicare enrollment.

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In conjunction with its request to back date the effective billing date to February 2022⁵, Petitioner points out it has approximately 1,500 claims with a value of over $3,000,000 that would be impacted.  It notes that if these claims are not covered, it will face difficult conditions and possibly even closure.  CMS Ex. 11 at 1.  These arguments are equitable in nature, and, regardless of how compelling they might be, I do not have the authority to grant the equitable relief sought.  I cannot set aside the lawful exercise of discretion by CMS or its contractor based on principles of equity.  US Ultrasound, DAB No. 2302 at 8 (2010).  I cannot grant Petitioner an exemption from the regulation governing the effective date of Medicare billing privileges as promulgated in 42 C.F.R. § 424.520(d), which is binding on me.  As a result, I find no basis to overturn Novitas’ effective date determination.

V.     Conclusion

I affirm CMS’s decision that the effective date of Petitioner’s Medicare enrollment and billing privilege is August 24, 2022, with retrospective billing permitted as of May 26, 2022.

Endnotes

¹    Petitioner had filed an earlier request for reconsideration on September 22, 2022, but this request was not considered by Novitas because it was not appropriately signed.  CMS Exs. 11, 12.

²  This case was originally assigned to ALJ Leslie A. Weyn but was reassigned to me on September 28, 2023.

³  Because an in-person hearing for the purpose of cross-examination is not necessary, I deny CMS’s motion for summary judgment as moot.

⁴  My findings of fact and conclusions of law appear as numbered headings in bold italic type.

⁵  In the request for reconsideration and in the request for hearing, Petitioner requested a retroactive billing date of February 1, 2022.  CMS Ex. 11 at 1; RFH.  It is assumed that this date is a typographical error since February 11, 2022 is the requested retroactive date throughout the remainder of the record.  There also appears to be a typographical error in the amount of money at issue since it is listed as $3,20,000.  CMS Ex. 11 at 1.  It is not necessary to resolve the amount of the potential loss since, as noted above, it is irrelevant to this adjudication.