Sandeep Gupta, M.D., et al., DAB No. 3088 (2023)

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Sandeep Gupta, M.D., and 11 other health care suppliers (Petitioners) appeal the May 21, 2020 decision of an Administrative Law Judge (ALJ) captioned Sandeep Gupta, M.D., et al., DAB CR5617 (ALJ Decision).  The ALJ Decision upheld the determination by the Centers for Medicare & Medicaid Services (CMS) that May 10, 2017, is the earliest possible effective date for the reassignments of Petitioners’ Medicare billing privileges and that CMS had authority to grant a retrospective billing date of April 10, 2017.  We affirm the ALJ Decision for the reasons stated below.

Legal Background

Under the Social Security Act (Act), the Department of Health and Human Services administers the Medicare program through CMS and administrative contractors.  Act §§ 1816, 1842, 1874A.  A “supplier,” which includes a physician or other individual practitioner, must be enrolled in the Medicare program to receive payment from the program for covered items or services.  Id. § 1861(d); 42 C.F.R. §§ 400.202, 424.500, 424.505.

To enroll, a supplier must complete and submit to CMS either the applicable enrollment application or an approved electronic submission.  42 C.F.R. §§ 424.502, 424.510(a)(1), (d)(1).  The enrollment process includes identifying the supplier, validating the supplier’s eligibility to provide items or services to Medicare beneficiaries, identifying and confirming the supplier’s practice location and owners, and granting the supplier Medicare billing privileges.  Id. § 424.502.

Reassignment of a supplier’s Medicare billing privileges is permitted only in specified circumstances and requires submission of the appropriate enrollment application.  42 C.F.R. § 424.80(a), (b); see also 71 Fed. Reg. 20,754, 20,756, 20,767 (Final Rule) (Apr. 21, 2006).  CMS has created several standard enrollment applications for different enrollment types, including Forms CMS-855B (for “Clinics/Group Practices and Other Suppliers”), CMS-855I (for “Physicians and Non-Physician Practitioners”), and CMS-

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855R (for “Reassignment of Medicare Benefits”).  Id.  In designating these forms as official enrollment applications, CMS stated that the information they required would “uniquely identify the providers and suppliers for the purpose of enumeration and payment,” and that the Office of Management and Budget (OMB) had approved the Forms 855 for those purposes.  Id. at 20,756; see also id. at 20,767 (confirming forms’ purposes).

Approval of a Medicare enrollment application is essential to determining the effective date of billing privileges.  Under 42 C.F.R. § 424.520(d), the “effective date of billing privileges” is the later of either “[t]he date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor” or “[t]he date that the supplier first began furnishing services at a new practice location.”¹  CMS explained, in the preamble to the rulemaking that promulgated section 424.520, that the term “date of filing” means “the date that the Medicare . . . contractor receives a signed Medicare enrollment application that the Medicare . . . contractor is able to process to approval.”  73 Fed. Reg. 69,726, 69,766-67 (Final Rule) (Nov. 19, 2008).  Suppliers who have “met all program requirements” may “retrospectively bill” Medicare for services for up to “[t]hirty days prior to their effective date if circumstances precluded enrollment in advance of providing services to Medicare beneficiaries.”  42 C.F.R. § 424.521(a)(1).  This 30-day period is commonly called the retrospective billing period.²

CMS publishes the Medicare Program Integrity Manual (MPIM) for use by CMS components and contractors in administering CMS programs, see Yolanda Hamilton, M.D., DAB No. 3061, at 26 n.22 (2022), including performance of provider and supplier enrollment functions.³  Effective December 19, 2016, MPIM section 15.5.20.E.3 stated:

If the Form CMS-855R is accompanied by an initial Form CMS-855I or submitted as a “stand-alone” form (that is, a Form CMS-855R is submitted

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as a new reassignment, such as when an enrolled physician who is operating as a sole proprietor joins a group practice and reassigns his benefits to the group), the effective date of the enrollment and the reassignment shall be consistent with the 30-day rule (i.e., the later of the date of filing or the date the reassignor first began furnishing services at the new location) specified in section 15.17 of this chapter.

CMS Pub. 100-08, Transmittal 676, “Clarification of Certain Policies in Pub. 100-08, Chapter 15 Regarding the Processing of Form CMS-855R Applications,” https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/2016-Transmittals-Items/R676PI (last accessed Feb. 2, 2023).  The cross-referenced provision, MPIM section 15.17, specified the rule for establishing effective dates “[i]n accordance with 42 CFR § 424.520(d),” and for retrospective billing dates “[c]onsistent with 42 CFR § 424.521(a).”  Id.

The effective date of a supplier’s billing privileges is among the specified “initial determinations” subject to administrative review under 42 C.F.R. Part 498.  See 42 C.F.R. §§ 498.3(a)(1), (b)(15), 498.5(l); Victor Alvarez, M.D., DAB No. 2325, at 3 (2010).  A dissatisfied supplier may request a “reconsidered determination” of the effective date from CMS or its contractor, then a hearing on the reconsidered determination before an ALJ, then review of the ALJ’s decision by the Board.  See 42 C.F.R. § 498.5(l)(1)-(3).  However, the rejection of an enrollment application is not an “initial determination” subject to ALJ and Board review under 42 C.F.R. Part 498.  See 42 C.F.R. § 424.525(d).

Case Background⁴

In January 2017, the 12 Petitioners joined Premier Health Specialists, Inc. (Premier).  ALJ Decision at 2, 4.  Petitioners are:  Sandeep Gupta, M.D.; Ali Usmani, M.D.; Gary Brown, M.D.; Mohammad Khalid, M.D.; Alvaro Waissbluth, M.D.; Joseph Solomito, M.D.; Madhumita Saha, M.D.; Virinder Sidhu, ACNP; Heather Daniel, ACNP; Jennifer Atkinson, ACNP; Rebecca Malott, ACNP; and Cortnee Kelly, CNP.  Id. at 6.

On January 14, 2017, Premier submitted a Form CMS-855B, which CMS contractor CGS Administrators, LLC (CGS) rejected on February 28, 2017, with instructions for

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completing and resubmitting a new enrollment application.  CMS Ex. 3.⁵  Premier reapplied, and CGS issued a notice of approval on May 11, 2017.  ALJ Decision at 4; CMS Ex. 4.

Meanwhile, on May 10, 2017, Petitioners submitted to CGS individual Forms CMS-855I to change their information and individual Forms CMS-855R to reassign their billing privileges to Premier.  See CMS Ex. 5, at 1-2, 6-9; see also ALJ Decision at 4.  CGS sent individual letters dated from May 23, 2017, to May 26, 2017, notifying Petitioners that it had approved those forms.  See CMS Ex. 5, at 3-5, 10-11.

CMS thus enrolled Petitioners with effective dates of May 10, 2017, and retrospective billing dates of April 10, 2017 (although the letters misidentified April 10, 2017 as the “Effective Date”).  See CMS Ex. 5 at 4; ALJ Decision at 2.

Petitioners jointly requested reconsideration by a CGS hearing officer, seeking an effective date of January 30, 2017 (the date they joined Premier).  ALJ Decision at 2.  In 12 separate reconsidered determinations dated October 4, 5, and 6, 2017, CGS affirmed the initial determinations.  Id.

Petitioners timely requested an ALJ hearing, explaining that CGS previously had processed enrollment applications differently, Premier thought “that group enrollment had to be completed prior to individual enrollment,” and Petitioners sought a January 30, 2017 effective date “since there was no intentional delay in submitting individual applications.”  P. Req. for Hr’g at 1-2.  CMS filed a combined brief and motion for summary judgment, arguing that CMS properly determined the effective date for reassignment and that Petitioners are not entitled to equitable relief.  CMS Combined Mot. & Mem. of Law at 6-10.  (CMS also noted that the actual “‘effective date’ (as the regulations use that term) is May 10, 2017,” and April 10, 2017 was “the first day of the 30-day retrospective billing period allowed under 42 C.F.R. § 424.521(a)(1).”  Id. at 5 n.4.)  CMS submitted five exhibits and no witness testimony.  Petitioners filed a combined brief and motion for summary judgment, asserting that CMS improperly determined the effective date for reassignment and that Petitioners were entitled to

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equitable relief because CMS willfully violated its own policies to Petitioners’ detriment.  P. Combined Mot. & Mem. at 6-11.  Petitioners submitted no exhibits or witness testimony.  All parties filed response memoranda.  CMS Resp. at 2-8; P. Reply to CMS Resp. at 1-4.

The ALJ upheld CGS’s reconsidered determination.  ALJ Decision at 1, 5.  The ALJ dispensed with an in-person hearing due to the absence of witness testimony and decided the case on the written record rather than by summary judgment.  Id. at 2-3.  Unlike CGS, the ALJ did not “conflate the effective date” of supplier approval (May 10, 2017) with the earlier “retrospective billing date” (April 10, 2017), as 42 C.F.R. § 498.3(b)(15) provided regulatory authority to review the former but not the latter.  Id. at 4.  The ALJ rejected Petitioners’ argument that 42 C.F.R. § 424.520(d) applies only to initial enrollments and not requests for reassignment of benefits.  Id.  In so holding, the ALJ relied on the Board’s decision in Gaurav Lakhanpal, MD, DAB No. 2951 (2019), which held that the effective date standard in 42 C.F.R § 424.520(d) applied to reassignment applications.  Id.  The ALJ also rejected Petitioners’ arguments “that they are entitled to equitable relief based on [CGS’s] purported mishandling and rejection of Premier’s Form CMS-855B, which, according to Petitioners, delayed them from filing their reassignment applications.”  Id. at 5.  The ALJ declared the law “well-settled” that an ALJ has no authority to review either a contractor’s rejection of an application or “equitable or policy arguments.”  Id.  Accordingly, the ALJ ruled that “the date Petitioners filed their subsequently-approved reassignment applications – May 10, 2017 – is the correct effective date for the reassignments.”  Id. at 4.

Petitioners timely requested Board review, contending the ALJ erred by applying 42 C.F.R. § 424.520(d) to reassignment applications from already-enrolled suppliers and by rejecting Petitioners’ equitable estoppel claims.  Request for Review (RR) at 4-7.

CMS, in response, argued that the ALJ properly relied on Lakhanpal and correctly concluded that 42 C.F.R. § 424.520(d) applied to reassignments, and that the Board cannot address Petitioners’ equitable arguments.  CMS Br. at 1, 6-9.

Standard of Review

The Board’s standard of review on a disputed factual issue is “whether the ALJ decision is supported by substantial evidence in the record as a whole.”  Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s or Supplier’s Enrollment in the Medicare Program  (Guidelines), “Completion of the Review Process,” ¶ (c) (available at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/enrollment/index.html).  The Board’s standard of review on a disputed issue of law is “whether the ALJ decision is erroneous,” meaning “contrary to law or applicable regulations.”  Id.

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Analysis

1. The ALJ’s conclusion concerning the effective date of Petitioners’ enrollment and billing privileges is supported by substantial evidence and free of legal error.

Petitioners claim, but fail to demonstrate, that the ALJ erred in affirming CMS’s determination of May 10, 2017, as the effective date of their enrollment and reassigned billing privileges.  The ALJ correctly concluded that, pursuant to 42 C.F.R. § 498.3(b)(15), the only reviewable issue is CMS’s initial determination of Petitioners’ effective date.  See ALJ Decision at 4, 5.  The ALJ also correctly rejected Petitioners’ assertion that 42 C.F.R. § 424.520(d) does not apply to reassignments by already-enrolled suppliers such as Petitioners, and thus correctly upheld CMS’s determination of Petitioners’ effective date.  The ALJ’s legal analysis and conclusions are free of legal error and consistent with Board precedent, as further discussed below.

1. The ALJ correctly applied 42 C.F.R. § 424.520(d) to reassignments of benefits, consistent with Board precedent.

Petitioners assert that 42 C.F.R. § 424.520(d) does not apply to reassignments, and thus cannot determine Petitioners’ effective dates, largely in reliance on two prior ALJ decisions:  Parthasarathy Srinivasan, M.D., DAB CR2875 (2013), and Randolph Cook, M.D., DAB CR3985 (2015).  RR at 6.  Petitioners particularly rely on pronouncements in Srinivasan and Cook that section 424.520(d) applies only to practitioners initially enrolling or re-enrolling with Medicare, and not to already-enrolled practitioners reassigning their billing privileges.  Id. at 5 (citing Srinivasan, DAB CR2875, at 7, 12, and Cook, DAB CR3985, at 5, 8).

Such unreviewed prior ALJ decisions are not binding precedent on either an ALJ or the Board.  See Frederick Brodeur, M.D., DAB No. 2857, at 13 (2018) (“The ALJ was not bound by the decisions of other ALJs which were not appealed to the Board.”); Alexander C. Gatzimos, MD, JD, LLC, DAB No. 2730, at 16 (2016) (“ALJ Decisions have no precedential weight and are not binding on the Board.”).  Instead, such decisions “are useful only to the extent their reasoning is on point and persuasive.”  John M. Shimko, D.P.M., DAB No. 2689, at 5 (2016).

Srinivasan and Cook are neither on point nor persuasive for two reasons.  First, both decisions relied on prior MPIM language that was out of date by 2017, when CMS issued the initial determinations at issue in this appeal.  During the 2012 through 2014 period relevant to Srinivasan and Cook, the pertinent MPIM language, then in section 15.5.20.A, stated the effective date of a reassignment was “the date on which the individual began or will begin rendering services with the reassignee.”  See Srinivasan, DAB CR2875, at 13; see also Cook, DAB CR3985, at 4, 9.  The ALJs who decided Srinivasan and Cook relied

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on that MPIM guidance instead of the enrollment regulations.  See Srinivasan, DAB CR2875, at 16-17 (concluding that “42 C.F.R. § 424.520(d) and 42 C.F.R. § 424.521 simply have no application in this case,” so “the effective date of the reassignment is determined pursuant to CMS policy articulated in [the] MPIM”); see also Cook, DAB CR3985, at 2 (holding that “the effective date of reassignment of Medicare benefits is controlled by the MPIM, rather than the enrollment regulations”).  However, effective December 19, 2016, new MPIM section 15.5.20.E.3 plainly stated that the reassignment effective date is “the later of the date of filing or the date the reassignor first began furnishing services at the new location.”  CMS Pub. 100-08, Transmittal 676, § 15.5.20.E.3.  That amendment aligned the MPIM standard with the regulatory standard in section 424.520(d) and erased the distinction that the ALJs had perceived and employed in their analysis when deciding Srinivasan and Cook.

The second reason that Srinivasan and Cook are not on point or persuasive is that they predate and conflict with three controlling Board decisions:  Lakhanpal, decided in 2019; Yakup Akyol, M.D., DAB No. 3017 (2020); and Timothy Ekhlassi, M.D., M.P.H., DAB No. 3065 (2022).⁶  The conclusions of Srinivasan and Cook are inconsistent with our decision in Lakhanpal, DAB No. 2951, on which the ALJ deciding the present case reasonably and properly relied.  Lakhanpal, like this case, concerned a supplier’s application to reassign Medicare billing and payment rights to the supplier’s new employer.  See id. at 3.  The Board in Lakhanpal recognized that MPIM section 15.5.20.E.3 and 42 C.F.R. § 424.520(d) are consistent, and the regulation controls the effective date for reassignments of Medicare billing privileges:

While the MPIM provisions are certainly consistent with the regulations, it is unnecessary to rely on them.  Section 424.520(d) sets the effective date of billing privileges for all physicians based on the filing of an enrollment application.  The reassignment process requires the filing of an enrollment application to alter the recipient of payments.  (The prior enrollment remains in effect until the new enrollment application altering the billing privileges to reassign payment is approved with an effective date assigned pursuant to the regulation.)

Id. at 5 n.5 (emphasis added).

Akyol and Ekhlassi reaffirmed Lakhanpal.  In Akyol, which addressed a supplier’s reassignment to the supplier’s employer, the Board discussed Lakhanpal, confirmed that, “[i]n order to reassign Medicare benefits, a physician must submit and obtain CMS’s

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approval of a reassignment application, known as form CMS-855R,” and affirmed an effective date determined per 42 C.F.R. § 424.520(d).  Akyol at 2, 5-6.  Ekhlassi also concerned the effective date of a physician supplier’s reassignment, reconfirmed that, “[i]n order to reassign Medicare benefits, a physician must submit and obtain CMS’s approval of a reassignment application, form CMS-855R (reassignment application),” and again upheld an effective date determined by applying section 424.520(d).  Ekhlassi at 2, 6-7.

Thus, development of the relevant law since Srinivasan and Cook has nullified the fundamental premises of those two non-precedential ALJ decisions.  The Board’s subsequent decisions in Lakhanpal, Akyol, and Ekhlassi conclusively established that 42 C.F.R. §§ 424.520(d) and 424.521 apply to reassignments.  Meanwhile, the 2016 promulgation of MPIM section 15.5.20.E.3 harmonized the alternative standard that the ALJs who decided Srinivasan and Cook applied to reassignments.  Consequently, Srinivasan and Cook lack any persuasive value in this case.

Petitioners, recognizing the significance of the 2016 amendment of the MPIM, argue that it impermissibly “attempts to extend 42 C.F.R. § 424.520(d) beyond its plain language,” RR at 6, yet the ALJ Decision did not rely on or even mention the MPIM.  Essentially, Petitioners asked the ALJ to disregard the MPIM and the ALJ did so, relying instead on Lakhanpal, which noted both that “the MPIM provisions are certainly consistent with the regulations,” and that “it is unnecessary to rely on them.”  See ALJ Decision at 4 (citing Lakhanpal at 5 n.5).  Under these circumstances, Petitioners’ arguments concerning the MPIM are not material and we need not address them further.  Cf. The Harborage, DAB No. 2905, at 14 (2018) (assessing petitioner’s argument about care plan meetings as “not material since the ALJ did not base his decision on whether the facility should have held a care plan meeting”).

Nevertheless, it is worth noting further CMS policy statements confirming that promulgation of MPIM section 15.5.20.E.3 did not misapply 42 C.F.R. § 424.520(d).  Effective January 1, 2022, CMS adopted 42 C.F.R. § 424.522(a), which states, “[a] reassignment of benefits under § 424.80 is effective beginning 30 days before the Form CMS-855R is submitted if all applicable requirements during that period were otherwise met.”  See 86 Fed. Reg. 62,240, 62,419 (Nov. 9, 2021).  This regulation does not apply retroactively to determine the effective date in this case, yet the rule’s preamble recognized that previously, “[u]nder the applicable [M]PIM guidance, CMS applied the basic principles of §§ 424.520(d) and 424.521(a) to Form CMS-855R reassignments when establishing the effective date of the latter.”  Id. at 62,357.

Thus, the ALJ’s application of 42 C.F.R. § 424.520(d) to Petitioners’ reassignments of billing privileges was consistent with relevant Board precedent and the MPIM and free of legal error.

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2. The ALJ’s interpretation of 42 C.F.R. § 424.520(d) is consistent with the plain language of the regulation, its regulatory context, and established principles of construction.

Petitioners also assert an argument based on regulatory construction principles, asserting that “nothing in the plain language of 42 C.F.R. § 424.520(d) indicates it applies to a reassignment of benefits by a provider who is already enrolled in Medicare.”  RR at 5.  Further, Petitioners argue, 42 C.F.R. § 424.510, “which outlines the requirements for enrolling and re-enrolling with Medicare,” makes “no mention of reassigning billing privileges.”  Id. at 6.  Thus, Petitioners argue, “[t]he two acts, enrollment and reassignment, are separate and distinct,” and the ALJ erred in upholding CMS’s regulatory interpretation.  Id.

As stated above, our prior decisions in Lakhanpal, Akyol, and Ekhlassi refute Petitioners’ premise, but we take this opportunity to explain further why the ALJ’s reading of 42 C.F.R. § 424.520(d) is correct and Petitioners’ reading is not.  Petitioners’ position is inconsistent with the governing regulation’s plain language, its regulatory context, and established principles of regulatory construction, and we discuss each point in turn.

First, Petitioners’ position is inconsistent with the plain language of the governing regulation.  By the plain language of 42 C.F.R. § 424.520(d), the “effective date of billing privileges” must be “the later of” either the “date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor” or the “date that the supplier first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d)(1), (2).  There is no factual dispute that Petitioners began working at the Premier practice on January 30, 2017, but did not file their CMS-855R enrollment application forms until May 10, 2017.  Thus, by a plain-language reading, Petitioners’ effective date must be May 10, 2017, the later of those two dates (and per section 424.521(a)(1) their earliest permissible retrospective billing date is April 30, 2017, the thirtieth day before May 10, 2017).  See Decatur Health Imaging, LLC, DAB No. 2805, at 7 (2017) (“The Board has held that ‘the plain language’ of the effective date regulation” at section 424.520(d) “requires that the effective date be based on an application that was ‘processed to approval’ by the Medicare contractor.”) (citing Karthik Ramaswamy, M.D., DAB No. 2563, at 6 (2014) (“[U]nder the plain language of the regulation, neither an ALJ nor the Board may change an effective date to the date of receipt of an earlier application that . . . was not processed to approval.”) (emphasis omitted), aff’d sub nom. Ramaswamy v. Burwell, 83 F. Supp. 3d 846 (E.D. Mo. 2015)).

Petitioners’ reading also is inconsistent with the regulatory scheme for supplier enrollment when properly viewed as a whole.  CMS publicly designated the CMS-855R as one of the official enrollment applications that serve to “uniquely identify the providers and suppliers for the purpose of enumeration and payment,” and OMB approved the CMS-855R (and other variations of the CMS 855) for those purposes.  71

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Fed. Reg. 20,754,20,756.  The ALJ appropriately recognized the nature and necessity of the Form CMS-855R, and its relation to 42 C.F.R. § 424.520(d) within the comprehensive regulatory scheme, by explaining:

A supplier (which includes physicians and non-physician practitioners) who is enrolled in the Medicare program may reassign his/her Medicare payments to an employer. Act § 1842(b)(6); 42 C.F.R. § 424.80(b)(1); see Act § 1861(d).  To do so, the supplier submits an enrollment application, Form CMS-855R (reassignment application).  71 Fed. Reg. 20,754, 20,756 (Apr. 21, 2006) (eff. June 20, 2006); Gaurav Lakhanpal, MD, DAB No. 2951 (2019).

Under section 424.520(d), the effective date for billing privileges for physicians and non-physician practitioners “is the later of” the date of filing a subsequently-approved enrollment application or the date the practitioner first began furnishing services at a new practice location.  (Emphasis added).

ALJ Decision at 3.  This contextual interpretation is consistent with established canons of regulatory construction.  See Best Fla. Homecare, Inc., DAB No. 2873, at 11 (2018) (rejecting petitioner’s argument because it “would make a mockery of the entire regulatory scheme CMS has established”); Amir Tadros, DAB No. 2550, at 9 (2013) (rejecting petitioner’s argument as “inconsistent with the regulatory scheme”).

Petitioners’ contentions also are inconsistent with the principle of construction that we give meaning and effect to each term within a regulation.  See Rural Metro Corp. of Fla., Inc., DAB No. 2977, at 8 (2019) (“We interpret the language of a regulation in a manner that gives effect to all its terms.”).  While 42 C.F.R. §§ 424.510 and 424.520(d) do not expressly include reassignments, they also do not expressly except or exclude them, and Petitioners identify no other authority that would determine the correct effective date for reassigned billing privileges if, as Petitioners contend, these regulations do not apply.  Petitioners merely declare, without statutory or regulatory support, that their effective date “is January 30, 2017, the date [they] commenced providing services with Premier.”  RR at 6.  Petitioners thus read out of existence section 424.520(d)(1), which specifies the filing date of a supplier’s approved enrollment application as one of two essential factors for determining the supplier’s effective date.  Alternatively, Petitioners’ reading inverts section 424.520(d) to make a supplier’s effective date the earlier (not the later) of either the filing date of an ultimately approved application under section 424.520(d)(1), or the first date of services at a new practice location under section 424.520(d)(2).  Either construction of section 424.520(d) impermissibly ignores or negates some or all of the regulation’s terms.  See Ridgeview Hosp., DAB No. 2593, at 7 (2014) (applying the “fundamental principle of statutory construction, equally applicable to regulatory construction, that every word and every phrase of the text must be given effect so that no

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word or phrase is rendered superfluous or to have no consequence”).

Petitioners’ position also conflicts with the interpretive principle that we construe regulations to avoid illogical results.  See, e.g., id. at 11 (rejecting regulatory construction that would “irrationally” produce illogical result).  If Petitioners’ reading of the enrollment regulations is correct, then an enrolled supplier is entitled to a reassignment effective date as of whatever date the supplier joins a new practice location, even if the supplier does not submit a reassignment application until years later.  In effect, this reading would afford suppliers a retrospective billing period far exceeding the 30-day (or, in rare circumstances, 90-day) maximum that 42 C.F.R. § 424.521(a) allows.  Petitioners’ reading also would create potential administrative disarray concerning previously submitted claims.  See 42 C.F.R. § 424.502 (stating Medicare uses enrollment “to establish eligibility to submit claims” and the process includes “confirmation of the provider or supplier’s practice location(s) and owner(s)”).  The Board properly upholds CMS regulatory interpretations – and affirms ALJ decisions upholding them – when, as here, petitioners do not rely on a reasonable alternative interpretation.  See, e.g., Urology Group of NJ, LLC, DAB No. 2860, at 12-13 (2018) (rejecting petitioner’s challenge to CMS interpretation of section 424.520(d) as stated in MPIM, because petitioner “had adequate notice of CMS’s interpretation of the regulations” and “has not proved that it actually relied on a reasonable alternative interpretation of the regulations”).

Thus, the ALJ’s interpretation of 42 C.F.R. § 424.520(d) is consistent with the plain language of the regulation, its regulatory context, and established principles of regulatory construction.

2. The ALJ correctly rejected Petitioners’ arguments that are equitable in nature.

We face a threshold question whether Petitioners’ equitable arguments are sufficiently preserved to merit review.  Petitioners assert, without supporting citations to the record, that “[a]ll required elements of equitable estoppel are met and this Board may grant equitable relief in this case,” and they reject the ALJ’s contrary conclusion without specifying any fault in the ALJ’s analysis.  RR at 7.  Instead, Petitioners merely refer us to their filings before the ALJ for a recitation of the relevant facts and repeat, in less detail, the same legal arguments and authorities the ALJ rejected.  Id. at 2, 6-7.  The Board’s standards require more.  See Guidelines, “Additional Rules Applicable to Both Electronic and Non-Electronic Filing,” ¶ (c) (“A submission (including the request for review) may not incorporate by reference a brief or parts of a brief previously submitted to the ALJ.”); id. at “Starting the Review Process” ¶ (d) (informing petitioners that request for review “must specify each finding of fact and conclusion of law with which you disagree, and your basis for contending that each such finding or conclusion is unsupported or incorrect,” and, “where appropriate, each argument should be supported by precise citations to the record”).

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Nevertheless, we consider Petitioners’ equitable arguments and dispose of them on substantive grounds.  Cf. Amber Mullins, N.P., DAB No. 2729, at 5-6 (2016) (discussing deficiencies of petitioner’s request for review and pleas for equitable relief, but stating Board would “nevertheless construe Petitioner’s request for compassionate treatment by the Board as referencing these arguments that she made to the ALJ,” and addressing them substantively).  We interpret Petitioners’ request for review as reasserting their prior arguments that, as the ALJ summarized, “they are entitled to equitable relief based on the contractor representative’s purported mishandling and rejection of Premier’s Form CMS-855B, which, according to Petitioners, delayed them from filing their reassignment applications.”  ALJ Decision at 5; see also P. Combined Mot. & Mem. at 2-3, 8-11.

The ALJ rejected those arguments for two reasons, both of which are correct:  first, Petitioners’ arguments concern an unreviewable rejection of an application; and second, they are equitable contentions that the Board cannot consider.  ALJ Decision at 5.  The ALJ accurately stated, “I have no authority to review the contractor’s rejection of an application,” id., because such a rejection is not an “initial determination” subject to ALJ and Board review under 42 C.F.R. Part 498.  See 42 C.F.R. § 424.525(d) (“Enrollment applications that are rejected are not afforded appeal rights.”); Ekhlassi at 8 (“The rejection of a supplier’s enrollment application or reassignment application is not an ‘initial determination’ subject to review by an ALJ or the Board under 42 C.F.R. § 498.3(b).”).  The ALJ also correctly stated, “I have no authority to grant Petitioner[s] an earlier effective date based on equitable or policy arguments.”  ALJ Decision at 5.  The Board “has repeatedly held that it, and ALJs, are bound by the applicable regulations and cannot alter an effective date based on principles of equity.”  Lakhanpal at 7; accord Ekhlassi at 9; see also Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972, at 9 (2019) (“[T]he Board has no authority to provide any equitable relief.”).

Even if the Board could address Petitioners’ equitable claims, the record contains no evidence of the type of affirmative governmental misconduct (such as fraud) that establishing equitable estoppel would require.  An “estoppel against the federal government, if available at all, is presumably unavailable” absent affirmative misconduct “such as fraud.”  US Ultrasound, DAB No. 2302, at 8 (2010).  There is no showing of affirmative misconduct where, as here, petitioners rely on communications that, at most, “suggest misunderstandings, miscommunications, or confusion on both sides.”  Richard Weinberger, M.D., and Barbara Vizy, M.D., DAB No. 2823, at 19 (2017).  The Board has upheld a CMS enrollment date determination against arguments, comparable to Petitioners’ in this case, that an erroneous enrollment application adequately indicated the supplier’s intentions and that CMS did not reasonably communicate with the supplier or grant a discretionary extension under 42 C.F.R. § 424.525(b) to facilitate compliance.  See Decatur Health at 7-8; compare P. Combined Mot. & Mem. at 8-11.  “The Board has no authority to reverse CMS’s determination of the effective date based on these factors.”  Decatur Health at 11.

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The authorities Petitioners cite to support their equitable claims – Brandt v. Hickel, 427 F.2d 53 (9th Cir. 1970), Henry v. United States, 870 F.2d 634, reh’g en banc declined (Fed. Cir. 1989), and USA Petroleum Corporation v. United States, 821 F.2d 622 (Fed. Cir. 1987) – are not persuasive.  Henry held that even evidence of “cumbersome and apparently inefficient” procedures did not establish that governmental agents’ actions “amounted to the kind of affirmative misconduct that is necessary to estop the Government.”  Henry, 870 F.2d at 637.  Brandt found estoppel applicable “where the erroneous advice was in the form of a crucial misstatement in an official decision,” but also recognized that “[n]ot every form of official misinformation will be considered sufficient to estop the government.”  Brandt at 56, 57.  Petitioners have alleged, at most, a lack of administrative helpfulness during processing of Premier’s Form 855B, see P. Combined Mot. and Mem. at 8-11, not a crucial misstatement in an official decision.  USA Petroleum found that defective government-supplied measurement tables created an estoppel, but emphasized the facts raised “no questions of reliance on mere oral advice from the government.”  USA Petroleum at 627.  The court pointedly distinguished Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51 (1984), in which the Supreme Court “rejected the estoppel argument” and emphasized the non-governmental party’s “responsibility to ascertain the legal requirements of Medicare reimbursement from the appropriate policymaking sources using the correct channels.”  USA Petroleum, 821 F.2d at 626.  As Heckler stated, a Medicare program participant has “a duty to familiarize itself with the legal requirements for cost reimbursement,” and erroneous advice from a governmental agent is, “in itself, insufficient to raise an estoppel.”  Heckler, 467 U.S. at 64.

Thus, the ALJ correctly rejected Petitioners’ arguments that are equitable in nature.  “The Board has repeatedly confirmed that neither it nor the ALJs have authority to overturn a legally valid agency action on equitable grounds or otherwise grant equitable relief.”  Weinberger at 18.  This case falls squarely within that rule.

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Conclusion

We affirm the ALJ’s May 21, 2020 decision upholding CMS’s determination that May 10, 2017, is the earliest possible effective date for Petitioners’ reassignments of their Medicare billing privileges, with retrospective billing privileges effective April 10, 2017.

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Endnotes

¹ We cite to and apply the regulations in effect from May 23 to May 26, 2017, the dates of the initial determinations regarding the effective date of Petitioners’ reassigned billing privileges.  See George Yaplee Med. Ctr., DAB No. 3003, at 3 n.3 (2020) (“We cite to, and apply, the enrollment regulations in effect on . . . the date CMS’s contractor issued the initial determination.”).  CMS later amended several regulations governing Medicare enrollment and billing privileges, including 42 C.F.R. §§ 424.520 and 424.521 (amended effective January 1, 2020, January 1, 2021, and January 1, 2022).  See 84 Fed. Reg. 62,568 (Nov. 15, 2019), 85 Fed. Reg. 70,298 (Nov. 4, 2020), and 86 Fed. Reg. 62,240 (Nov. 9, 2021).  Those amended regulations do not apply to this appeal.

² The retrospective billing period can be up to 90 days in the event of certain Presidentially-declared disasters as stated in 42 C.F.R. § 424.521(a)(2).  That provision does not apply to this case.

³ As of September 13, 2021, the Medicare enrollment policy moved from Chapter 15 to Chapter 10 of the MPIM.  See CMS Pub. 100-08, Transmittal 10945, “Removal of Provider Enrollment Policy from Chapter 15 in Publication (Pub.) 100-08” (Aug. 12, 2021), available at https://www.cms.gov/files/document/r10945PI.pdf(last accessed Feb. 2, 2023).  The MPIM is publicly available on CMS’s website at https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Internet-Only-Manuals-IOMs. 

⁴ The Board draws this summary from the ALJ Decision and the record of the ALJ proceedings.  We make no additional findings of fact.

⁵ This case’s procedural history warrants an explanatory note about certain citations to the administrative record.  The Civil Remedies Division originally docketed Petitioners’ joint hearing request under 12 individual docket numbers, one for each supplier.  In each separate appeal, CMS filed Exhibits 1 through 5 and a combined brief and motion for summary judgment, but the ALJ subsequently consolidated the 12 original cases into lead number C-18-258.  See ALJ Decision at 1, 2, 6.  The ALJ uploaded into C-18-258 the other 11 cases’ distinct CMS Exhibit 5 documents as ALJ Exhibits 1-11, but did not upload those other cases’ Exhibits 1-4 because the ALJ deemed them “virtually identical” in each case.  Id. at 1, 2.  The ALJ also uploaded to C-18-258 the combined briefs and motions for summary judgment that CMS already had filed in each individual case but treated them as essentially indistinguishable (except for Petitioners’ different names, approval notification dates, and reconsidered determination dates).  See id. at 2. Petitioners do not challenge how the ALJ consolidated the appeals or admitted the exhibits.  Our references to individual CMS exhibits and filings in the lead case apply collectively to each equivalent CMS exhibit and filing for each Petitioner in each consolidated case.

⁶ Pursuant to the schedule prescribed in the Board’s July 20, 2020 acknowledgment letter to the parties, the record for this appeal closed on September 9, 2020, before the issuance of Akyol on October 2, 2020, and Ekhlassi on June 7, 2022.  None of the parties sought leave from the Board to address those decisions by supplemental briefing or oral argument.  We do not fault any party for choosing not to do so.