Madhu Chawla, DAB CR6421 (2024)

DECISION

Petitioner reassigned her right to file claims with and receive payment from Medicare to Bridgeway Care at Home LLC (Bridgeway), her practice group, effective September 28, 2022, with a period of retrospective billing beginning June 30, 2022. 

I.     Facts

The material facts are not in dispute. 

On about September 1, 2021, Petitioner reassigned her right to receive payment from Medicare for care and services that she provided to Medicare beneficiaries to Bridgeway Care at Home, LLC (Bridgeway).  Departmental Appeals Board Electronic Filing System (DAB E-File) # 8 at 1 (electronic page counter) (Petitioner’s Brief); Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 28. 

On January 4, 2022, Novitas Solutions, a Medicare administrative contractor (MAC), received a CMS-855R application completed to reassign Petitioner’s Medicare billing privileges to At Home By Enhance Therapies (Enhance), and terminate her reassignment

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of billing privileges to Bridgeway.  The MAC notified Petitioner by letter dated January 11, 2022, that her reassignment to Bridgeway ended effective January 5, 2022.¹ CMS Exhibit (Ex.) 1 at 25-29. 

On October 28, 2022, Petitioner submitted another CMS-885R application to reassign her right to receive payment from Medicare for care and services rendered to Medicare beneficiaries to Bridgeway.  Petitioner requested that the reassignment be effective January 6, 2022, the day after the effective date of the MACs termination of Petitioner’s prior reassignment to Bridgeway.  CMS Ex. 1 at 15-24. 

The MAC notified Petitioner by letter dated November 11, 2022, that Petitioner’s reassignment to Bridgeway was approved.  However, the MAC notice stated that the effective date of the reassignment to Bridgeway was July 30, 2022, and not January 6, 2022, as requested by Petitioner in her application.  CMS Ex. 1 at 8. 

Petitioner requested a reconsidered determination by letter dated December 19, 2022.  Petitioner argued that the termination of her prior reassignment to Bridgeway was done “unknowingly.”  CMS Ex. 1 at 7.  The MAC issued a reconsidered determination on February 9, 2023.  The MAC incorrectly decided that the effective date of Petitioner’s “billing privileges” (actually, the reassignment of Petitioner’s existing billing privileges) was October 28, 2022, the date Petitioner filed the application to reassign to Bridgeway.  The MAC also incorrectly determined that the period for retrospective billing began on July 30, 2022.²  CMS Ex. 1 at 3. 

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Petitioner requested a hearing before an administrative law judge (ALJ) on March 15, 2023 (RFH).  On March 16, 2023, the case was assigned to me, and an Acknowledgement and Standing Order (Standing Order) were issued at my direction. 

CMS filed a motion for summary judgment (CMS Br.) with CMS Ex. 1 on March 28, 2023.  Petitioner filed a response (P. Br.) on June 1, 2023.  DAB E-File # 8.  CMS filed a reply brief on June 7, 2023 (CMS Reply).  Petitioner did not object to my consideration of CMS Ex. 1, and it is admitted and considered as evidence.  Petitioner filed as an attachment to her response an e-mail thread.  CMS objects to my consideration of the email thread as evidence.  CMS Reply at 1.  Petitioner did not show good cause for submitting the email thread for the first time before me.  Therefore, I must exclude the e‑mail thread as evidence.  42 C.F.R. § 498.56(e)(2)(i). 

II.     Discussion

A.  Applicable Law

Section 1831 of the Social Security Act (the Act) (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B.  Payment under the program for services rendered to Medicare-eligible beneficiaries may only be made to eligible providers of services and suppliers.³  Act §§ 1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395(u)(h)(1)).  Administration of the Part B program is through the MACs.  Act § 1842(a) (42 U.S.C. § 1395u(a)). 

The Act requires the Secretary of Health and Human Services (the Secretary) to issue regulations that establish a process for the enrollment of providers and suppliers, including the right to a hearing and judicial review of certain enrollment determinations. 

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Act § 1866(j) (42 U.S.C. § 1395cc(j)).  Pursuant to 42 C.F.R. § 424.505,⁴ a provider or supplier must be enrolled in the Medicare program and be issued a billing number to have billing privileges and to be eligible to receive payment for services rendered to a Medicare-eligible beneficiary. 

The Medicare beneficiary, i.e., one who is entitled to benefits under Medicare Part A or is enrolled under Part B, is the individual covered by Medicare and entitled to request payment for Medicare-covered health care items and services.  Act § 1802.  The assignment of the right to file a claim for Medicare coverage of health care charges from a Medicare beneficiary to a Medicare-enrolled provider or supplier is limited.  The reassignment of the right to file a Medicare claim from an enrolled provider or supplier to another provider or supplier is very limited.  42 C.F.R. pt. 424, subpt. F.  Reassignment to an employer is permitted from a supplier, such as a physician or physical therapist such as Petitioner, when reassignment is required as a condition of employment.  42 C.F.R. § 424.80(b)(1).  Reassignment to an entity that bills for a supplier’s services pursuant to a contractual arrangement is also permitted.⁵  42 C.F.R. § 424.80(b)(2) and (5). 

The Secretary has issued regulations that establish the right to a hearing and judicial review of certain enrollment determinations.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).  Pursuant to sections 1866(h)(1) and (j)(8) of the Act, a provider or supplier whose enrollment application or renewal application is denied is entitled to an administrative hearing and judicial review.  Appeal and review rights in provider and supplier cases are specified by 42 C.F.R. §§ 424.545 and 498.5. 

B.  Issues

Whether I have jurisdiction to review the determination by CMS or a MAC of the effective date of reassignment of the right to file claims with and to receive payment from Medicare; and

The effective date of reassignment. 

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C.  Conclusions of Law and Analysis

My conclusions of law are set forth in bold text followed by my analysis. 

1.  There is authority for me to review the February 9, 2023 reconsidered determination in this case. 

Petitioner seeks review of the MAC’s February 9, 2023 reconsidered determination.  The MAC on reconsideration concluded that the effective date of Petitioner’s reassignment to Bridgeway was October 28, 2022, with a period for retrospective billing beginning July 30, 2022.  CMS Ex. 1 at 3.  The MAC’s January 11, 2022 initial determination terminating Petitioner’s reassignment to Bridgeway effective January 5, 2022 (CMS Ex. 1 at 25-26) is not subject to my review because it is not a reconsidered determination.  Pursuant to 42 C.F.R. § 498.5(l)(1) and (2), in provider and supplier enrollment cases, a supplier has a right to ALJ review of a reconsidered determination but not an 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 Grp. of Ariz. LLC, DAB No. 2573 at 7 (2014). 

The Secretary promulgated the regulations at 42 C.F.R. §§ 424.545 and 498.5 that specify review and appeal rights in provider and supplier cases.  The Secretary has not specifically stated that a supplier has a right to ALJ review of a CMS or MAC determination related to reassignment of the right to file claims with and receive payment from Medicare, including the effective date of reassignment.  42 C.F.R. §§ 424.70-.90, 424.545, 498.3(b), 498.5.  However, 42 C.F.R. § 498.3(b)(15) provides that “[t]he effective date of a Medicare provider agreement or supplier approval” is an initial determination.  The Board has given an expansive interpretation to 42 C.F.R. § 498.3(b)(15) and found a right to ALJ review of the effective date of enrollment in Medicare; the effective date of the reactivation of billing privileges; and the effective date of the reassignment of the right to file claims with and receive payment from Medicare.  See, e.g., Timothy Onyiuke, MD, DAB No. 3092 at (2023); Sandeep Gupta, MD, et. al. DAB No. 3088 at 6-8 (2023); Victor Alvarez, M.D., DAB No. 2325 at 3-10 (2010) (determination of effective date of enrollment in Medicare is an initial determination subject to ALJ review and Board appeal); Urology Grp. of NJ, LLC, DAB No. 2860 at 6 (2018) (no right to review of a CMS or MAC determination to deactivate billing privileges but right to review of the determination of the effective date of reactivation); Gaurav Lakhanpal, MD, DAB No. 2951 (2019) (upholding ALJ review of challenge to effective date of reassignment). 

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2.  Summary judgment is appropriate.

I have concluded that Petitioner has a right to ALJ review of the MAC’s February 9, 2023 reconsidered determination of the effective date of reassignment of her right to file claims with and receive payment from Medicare to Bridgeway.  A hearing on the record before an ALJ is required under the Act.  Act §§ 205(b), 1866(h)(1), (j); Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004).  The procedures governing hearings in provider and supplier enrollment cases are at 42 C.F.R. pt. 498.  A party may waive appearance at an oral hearing but must do so affirmatively in writing.  42 C.F.R. § 498.66.  Petitioner has not waived oral hearing.  CMS filed a motion for summary judgment.  As I read Petitioner’s brief, Petitioner opposes summary judgment in favor of CMS.  P. Br. at 1. 

Summary judgment is not automatic but is limited to certain specific conditions.  The regulations do not establish or recognize a summary judgment procedure.  However, the Board has long accepted that summary judgment is an acceptable 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 also recognized that the Federal Rules of Civil Procedure do not apply in administrative adjudications such as this, but the Board has accepted that Fed. R. Civ. P. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate.  Furthermore, a summary judgment procedure was adopted as a matter of judicial economy within my authority to regulate the course of proceedings and made available to the parties in the litigation of this case by my Standing Order.  The parties were given notice by 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 and G.  The parties were advised that a fact alleged that is not specifically denied may be accepted as true for purposes of summary judgment.  The parties were also advised that evidence will be considered admissible and true unless specific objection is made to its admissibility and accuracy.  Standing Order ¶ 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.  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, drawing all reasonable inferences in that party’s favor.  The party requesting summary judgment bears the burden of showing that there are no genuine issues of material fact for trial and/or that it is entitled to judgment as a matter of law.  Generally, the non-movant may not defeat an adequately supported summary judgment motion by relying upon the denials in its pleadings or briefs but must furnish evidence of a dispute concerning a material fact, i.e., a fact that would affect the outcome of the case if proven.  See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Mission Hosp. Reg’l Med.

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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). 

The standard for deciding a case on summary judgment and an ALJ’s decision-making in deciding a summary judgment motion differs from that used in resolving a case after a hearing.  On summary judgment, the ALJ does not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence, as would be done when finding facts after a hearing on the record.  Rather, on summary judgment, the ALJ construes the evidence in a light most favorable to the non-movant and avoids deciding which version of the facts is more likely true.  Holy Cross Vill. at Notre Dame, Inc., DAB No. 2291 at 5 (2009).  The Board also has recognized that on summary judgment it is appropriate for the ALJ to consider whether a rational trier of fact could find that the party’s evidence would be sufficient to meet that party’s evidentiary burden.  Dumas Nursing & Rehab., L.P., DAB No. 2347 at 5 (2010).  The Secretary has not provided in 42 C.F.R. pt. 498 for the allocation of the burden of persuasion or the quantum of evidence required to satisfy the burden.  However, the Board has provided some persuasive analysis regarding the allocation of the burden of persuasion in cases subject to 42 C.F.R. pt. 498.  Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005). 

I conclude that Petitioner has failed to show that there is a genuine dispute as to any fact material to determination of the correct effective date of Petitioner’s reassignment of her right to file claims with and receive payment from Medicare to Bridgeway.  The determinations of the correct effective date of reassignment and the beginning of the period for retrospective billing are based on application of the regulations to the undisputed facts.  CMS is entitled to judgment as a matter of law.  Accordingly, I conclude that summary judgment is appropriate. 

3.  The effective date of Petitioner’s reassignment to Bridgeway of her right to file claims with and receive payment from Medicare is September 28, 2022, pursuant to 42 C.F.R. § 424.522(a). 

4.  The beginning of the period of retrospective billing privileges on claims reassigned to Bridgeway is June 30, 2022, pursuant to 42 C.F.R. § 424.521(a)(1). 

The parties were advised in the Standing Order ¶ G that, for purposes of ruling on a motion for summary judgment, a fact alleged and not specifically denied would be accepted as true and offered evidence would be considered admissible and true absent a specific objection.  My factual findings in this case are based upon the undisputed or conceded facts.  I do not make credibility determinations, weigh the evidence, or decide

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which inferences to draw from the evidence in deciding a summary judgment motion.  The evidence is viewed in the light most favorable to Petitioner, the nonmovant, with all inferences drawn in Petitioner’s favor. 

Petitioner wants her new reassignment to Bridgeway to be effective January 6, 2022, to ensure that Bridgeway receives payment for unpaid claims related to care and services provided by Petitioner to Medicare-eligible privileges at or through Bridgeway beginning January 6, 2022, the date her reassignment to Bridgeway was terminated by the MAC.  RFH at 1; P. Br. at 1-3. 

Petitioner’s primary argument before me is that her reassignment to Bridgeway, which had been in effect since September 1, 2021, was terminated in error.  Petitioner argues that the error occurred when the enrollment specialist at Enhance submitted the January 4, 2022 CMS-855R (CMS Ex. 1 at 27-29) to reassign Petitioner’s Medicare claims to Enhance and incorrectly completed the form to delete Petitioner’s reassignment to Bridgeway (CMS Ex. 1 at 27-28).  Petitioner argues she did not intend to stop her reassignment to Bridgeway.  Rather, Petitioner’s filings indicate that she intended to continue to see Medicare beneficiaries for both Bridgeway and Enhance with a separate reassignment to each.⁶  Petitioner states that as soon as the error was discovered when Bridgeway claims were denied, Petitioner filed the October 28, 2022 CMS-855R to reassign benefits to Bridgeway.  I accept Petitioner’s assertions as true for purposes of summary judgment.  

However, Petitioner does not dispute that on January 4, 2022, the MAC received a CMS-855R terminating her reassignment to Bridgeway and creating a new reassignment to Enhance.  CMS Ex. 1 at 27-29.  Petitioner does not dispute on January 11, 2022, the MAC sent Petitioner notice that it had taken action as requested by the January 4, 2022 CMS-855R.  The MAC’s notice was sent to Petitioner, to the attention of Shani Kurtz, 685 River Avenue, Lakewood, NJ.  CMS Ex. 1 at 25.  Shani Kurtz was the point of contact for Petitioner listed in the January 4, 2022 CMS-855R.  CMS Ex. 1 at 28.  Petitioner does not dispute that the January 11, 2022 MAC notice of initial determination was received by Petitioner’s contact person, Shani Kurtz.  Petitioner does not allege that she or anyone authorized to represent her requested reconsideration of the January 11, 2022 MAC initial determination and there is no evidence that she did so.  The period for requesting a reconsidered determination expired no more than 65 days after January 11, 2022, the date of the MAC initial determination.  42 C.F.R. § 498.22(b)(3).  Pursuant to 42 C.F.R. § 498.20(b), the January 11, 2022 MAC initial determination is binding upon

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Petitioner.  Furthermore, as already discussed, I have no authority to review an initial determination issued by a MAC in a provider supplier case such as this. 

Accordingly, I conclude that I can take no action related to the January 11, 2022 MAC initial determination that ended Petitioner’s reassignment to Bridgeway effective January 5, 2022. 

The February 9, 2023 reconsidered determination lists October 28, 2022, as the effective date of Petitioner’s reassignment to Bridgeway with the period for retrospective billing beginning on July 30, 2022.  CMS Ex. 1 at 3.  Both dates are incorrect.  The dates determined by the MAC show it is more likely than not that the MAC used an outdated version of the applicable regulations when determining those dates.⁷  The regulations that the MAC should have applied, i.e., 42 C.F.R. §§ 424.521- .522, were revised effective January 1, 2022.  86 Fed. Reg. 62,419.  Both errors must be corrected and doing so accords Petitioner slight relief.  

Application of the revised regulations to the undisputed facts is not complicated.  Pursuant to 42 C.F.R. § 424.522(a), the Secretary has provided that the reassignment of benefits is effective 30 days before the CMS-855R is submitted if all applicable requirements are met.  The date of filing of an enrollment application is the date the MAC received an application it processes to approval.  73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008); Alexander C. Gatzimos, MD, JD, LLC, DAB No. 2730 at 5 (2016).  In this case, Petitioner filed a CMS-855R on October 28, 2022, to reassign her eligibility to receive payment from Medicare to Bridgeway.  Under 42 C.F.R. § 424.522(a), the effective date of Petitioner’s reassignment Bridgeway is, as a matter of law, September 28, 2022, as there is no dispute that Petitioner met all applicable requirements during that period.  CMS Reply at 3. 

Petitioner is enrolled in Medicare as a physical therapist.  Pursuant to 42 C.F.R. § 424.521(a)(1) and (2), Petitioner (or in this case Bridgeway based on the reassignment) may request payment from Medicare for care and services Petitioner provided to Medicare-eligible beneficiaries for up to 30 days prior to the effective date of the reassignment or up to 90 days in the event of a Presidentially declared disaster.  There is no dispute that a Presidentially declared disaster related to COVID-19 was in effect on September 28, 2022, the effective date of the reassignment from Petitioner to Bridgeway.  CMS Br. at 1-2, 9.  Therefore, the period for retrospective billing, as a matter of law, began June 30, 2022.  CMS argues, citing a decision by another ALJ, that I may not

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review when retrospective billing is permitted under the regulation because that issue is solely within the discretion of CMS.  CMS Br. at 9.  Various appellate panels of the Board have concluded that ALJ decisions are not binding on the Board or other ALJs.  Diagnostic Imaging Network Medical Grp., Inc., DAB No. 3100 at 10 (2023); Zahid Imran, MD, DAB No. 2680 at 12 (2016).  I am required to follow the Act and regulations and have no authority to declare invalid or refuse to follow statutes or regulations.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009).  Contrary to the argument of CMS, the plain language of 42 C.F.R. § 424.521(a) grants CMS only limited discretion to determine when the period for retrospective billing begins.  The regulation explicitly states that “[t]he providers and suppliers identified in [42 C.F.R. § 424.521(a)(2), which includes a physical therapist such as Petitioner] may retrospectively bill for services” beginning on one of the two dates established by 42 C.F.R. § 424.521(a)(1)(i) and (ii).  42 C.F.R. § 424.521(a).  The regulation provides that retrospective billing is permitted either 30 days prior to the effective date of enrollment (or reassignment in this case) “if circumstances precluded enrollment in advance of providing services to Medicare beneficiaries” or 90 days prior to the effective date of enrollment (or reassignment in this case) if a “Presidentially-declared disaster under [42 U.S.C. §§ 5121-5206] precluded enrollment in advance of providing services to Medicare beneficiaries.”  42 C.F.R. § 424.521(a)(1)(i) and (ii).  CMS or the MAC determines whether the conditions specified under 42 C.F.R. § 424.521(a)(1)(i) or (2) trigger a period for retrospective billing,⁸ but if the determination is favorable to the provider or supplier the regulation does not provide that CMS may determine that the period for retrospective billing is less than either 30 days or 90 days.  In this case there is no dispute that there was a Presidentially declared disaster related to COVID-19; that Petitioner is entitled to a period for retrospective billing as a result; or that Petitioner met the requirements for retrospective billing.  CMS Ex. 1 at 3.  Therefore, the regulation requires that Petitioner is entitled to a period of 90 days for retrospective billing. 

Petitioner’s arguments may be requests for equitable relief.  However, I have no authority to grant Petitioner equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010).  I am also required to follow the Act and regulations and have no authority to declare invalid or refuse to follow statutes or regulations.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14. 

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III.     Conclusion

For the foregoing reasons, I conclude that Petitioner reassigned her right to file claims with and receive payment from Medicare to Bridgeway effective September 28, 2022, with a period for retrospective billing beginning June 30, 2022. 

Endnotes

¹  The letter, which is clearly a poorly drafted form letter, states in the first line that the MAC “completed your application to disenroll from the Medicare program.”  CMS Ex. 1 at 25.  The letter was addressed to Petitioner, to the attention of Shani Kurtz, 685 River Avenue, Unit 1, Lakewood, NJ 08701-5288.  Petitioner does not allege that she or Shani Kurtz did not receive the letter or that, despite its poor wording, it advised of the termination of her reassignment to Bridgeway.  Petitioner does not allege or present any evidence that she requested reconsideration of the January 11, 2022 initial determination of the MAC terminating her reassignment to Bridgeway.

²  The MAC’s errors are corrected by this decision.  The MAC’s errors most likely occurred because the MAC missed the fact that the regulations for determining the effective date of enrollment and establishing the period for retrospective billing, i.e., 42 C.F.R. §§ 424.520 - .522, were revised effective January 1, 2022, more than nine months prior to the MAC’s initial determination and more than a year prior to the reconsidered determination.  86 Fed. Reg. 62,419 (Nov. 9, 2021).

³  Petitioner, a physical therapist, is a “supplier” under the Act and the regulations.  A “supplier” furnishes services under Medicare and the term supplier applies to 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) and 1835(e) of the Act.  Act § 1861(u) (42 U.S.C. § 1395x(u)).  The distinction between providers and suppliers is important because they are treated differently under the Act for some purposes.

⁴  Citations are to the 2022 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.

⁵  The evidence does not show whether Petitioner was an employee of either Bridgeway or Enhance or had some contractual arrangements with them.  CMS Ex. 1 at 15-24, 27-29.

⁶  Multiple reassignments of Medicare billing privileges are not prohibited under 42 C.F.R. pt. 424.

⁷  CMS asserts that the MAC failed to apply 42 C.F.R. § 424.522(a).  In either case, CMS does not dispute that MAC’s reconsidered determination was in error regarding the determination of the effective date of reassignment.  CMS Br. at 2 n. 1.

⁸  The regulation does not provide that an ALJ may not review whether a CMS or MAC determination regarding the period for retrospective billing complies with the regulation, at least in the context of ALJ review of the effective date of enrollment or reassignment.