Tanique Richards, M.D., DAB CR5038 (2018)

Department of Health and Human Services
Civil Remedies Division

Docket No. C-17-810
Decision No. CR5038


Novitas Solutions (Novitas), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), approved the request of Tanique Richards, M.D. (Petitioner or Dr. Richards) to reassign her Medicare payments with an effective date of January 9, 2017.  Petitioner requested a hearing before an administrative law judge because she seeks an earlier effective date.  Novitas approved Petitioner’s reassignment application that it received on January 9, 2017; accordingly, it correctly determined that the effective date for Petitioner’s reassigned payments is January 9, 2017.  Therefore, I affirm the effective date determination.

I. Background

Prior to the dates at issue in this appeal, Petitioner was enrolled as a supplier under Provider Transaction Access Number (PTAN) 166379YRJ.  See CMS Exhibit (Ex.) 6; see also Petitioner’s Brief (P. Br.) at 1.  Effective January 1, 2012, Novitas deactivated Petitioner’s PTAN, because her employment with Greater Baltimore Medical Center (GBMC) ended.  CMS Ex. 6; P. Br. at 1.  Petitioner rejoined the group on September 26, 2016, which required her to reactivate her PTAN in order to bill for

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services provided.  P. Br. at 1; CMS Br. at 2.  On or about September 27, 2016, Petitioner’s representative submitted a reenrollment application consisting of Forms CMS‑855I and CMS‑855R, asking that Petitioner’s Medicare payments be reassigned to GBMC Physician Practices, whose group PTAN is 712L.  P. Ex. 8.  On November 5, 2016, Novitas notified Petitioner that her reactivation request was approved, effective September 29, 2016, and that she was assigned PTAN 538078YBPG.  P. Ex. 10.

Under cover of a letter dated January 4, 2017, Petitioner submitted a second CMS‑855R, requesting reassignment to “GBMC Inc./GBMA Clinic,” (GBMA Clinic) whose group PTAN is 725L.  CMS Ex. 7 at 6.  Novitas received the application on January 9, 2017.  CMS Ex. 7 at 15.  Novitas worked with Petitioner’s representative to develop the application, specifically to seek a requested effective date.  CMS Exs. 4, 5.  In a March 9, 2017 notice, Novitas approved the reassignment, effective January 9, 2017, with the PTAN 538078YRJ.  CMS Ex. 3.  Petitioner requested reconsideration, seeking a reassignment effective date of September 28, 2016.  CMS Ex. 2.  Novitas issued its reconsidered determination May 15, 2017.  CMS Ex. 1.  In the reconsidered determination, Novitas upheld its initial determination that the effective date for Petitioner’s PTAN 538078YRJ was January 9, 2017.  Id.

On June 5, 2017, Petitioner’s representative requested an administrative law judge hearing.  Request for Hearing.  In the request, Petitioner argues that she was mistakenly reenrolled under an incorrect group in September 2016 because of an error on the original CMS‑855R.  Id.  The hearing request asks that PTAN 538078YRJ be given the same effective date as PTAN 538078YBG.  Id.  I issued an Acknowledgment and Pre-Hearing Order (Pre‑Hearing Order), dated June 30, 2017, that required each party to file a pre‑hearing exchange consisting of a brief and any supporting documents.  Pre‑Hearing Order ¶ 4.

CMS filed its brief (CMS Br.), which incorporated a motion for summary judgment, and 7 proposed exhibits (CMS Exs. 1-7).  Petitioner filed a brief (P. Br.) and 3 proposed exhibits (P. Exs. 8-10).  Neither party objected to the other’s exhibits.  Therefore, in the absence of objection, I admit CMS Exs. 1-7 and P. Exs. 8-10.  Neither party offered the written direct testimony of any witness as part of its pre-hearing exchange.  As stated in my Pre-Hearing Order, “[a]n 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.”  Pre-Hearing Order ¶ 10.  Therefore, an in‑person hearing is not necessary, and I decide this case based on the parties’ written submissions, without regard to whether the standards for summary judgment are satisfied.

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II. Issue

The issue in this case is whether Novitas, acting on behalf of CMS, properly established January 9, 2017, as the effective date of reassignment of Petitioner’s Medicare payments to GBMC.

III. Jurisdiction

I have jurisdiction to 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

A. Applicable Legal Authority

The Social Security Act authorizes the Secretary of Health and Human Services to promulgate regulations governing the enrollment process for providers and suppliers.  Act §§ 1102, 1866(j) (42 U.S.C. §§ 1302, 1395cc(j)).  A “supplier” is “a physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services” under the Medicare provisions of the Act.  Act § 1861(d) (42 U.S.C. § 1395x(d)); see also Act § 1861(u) (42 U.S.C. § 1395x(u)).

A supplier must enroll in the Medicare program to receive payment for covered Medicare items or services.  42 C.F.R. § 424.505.  The regulations define “Enroll/Enrollment” as “the process that Medicare uses to establish eligibility to submit claims for Medicare-covered items and services.”  42 C.F.R. § 424.502.  A provider or supplier seeking billing privileges under the Medicare program must “submit enrollment information on the applicable enrollment application.  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 then establishes an effective date for billing privileges under the requirements stated in 42 C.F.R. § 424.520(d) and may permit limited retrospective billing under 42 C.F.R. § 424.521.

The Act and regulations provide limitations on who may receive payments due to a supplier of services and also provide for reassignment of those rights.  Act §§ 1815(c) and 1842(b)(6) (42 U.S.C. §§ 1395g(c) and 1395u(b)(6)); 42 C.F.R. § 424.70(a).  For Medicare Part B claims, a beneficiary may assign his or her benefits to an enrolled physician or non‑physician supplier providing services to that beneficiary.  Act § 1842(b)(3)(B)(ii) (42 C.F.R. § 1395u(b)(3)(B)(ii)).  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)(3) (42 U.S.C. § 1395u(b)(3)); 42 C.F.R. § 424.80(b)(1)-(2).

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For a supplier, such as a physician, to reassign benefits to an eligible entity, a supplier must complete and submit a Form CMS‑855R application.  Medicare Program Integrity Manual (MPIM), CMS Pub. 100‑08, Ch. 15, § 15.5.20.A.  The MPIM provides that reassignment of benefits may only occur between enrolled suppliers.  Id.  Further, the MPIM instructs contractors that when a Form CMS‑855R is submitted as a “stand alone” form (i.e. where an enrolled physician joins a new group practice), “the effective date of the enrollment and the reassignment shall be consistent with the 30‑day rule.”  MPIM § 15.5.20.E.3.1   Under the “30‑day rule,” CMS contractors calculate the effective date based on “the later of the date of filing or the date the reassignor first began furnishing services at the new location.”  Id; see also 42 C.F.R. § 424.520(d).

B. Findings of Fact and Conclusions of Law2

1. Novitas received Dr. Richards’ Form CMS‑855R for PTAN 538078YRJ on January 9, 2017.

Petitioner’s representative submitted a Form CMS‑855R to reassign Petitioner’s payments to group 725L (GBMA Clinic).  CMS Ex. 7.  Novitas received this application on January 9, 2017.  CMS Ex. 7 at 15.  Novitas worked with Petitioner to develop this application because it was missing information, specifically a requested “effective date in Section 1” of the application.  CMS Ex. 5.  Petitioner submitted an updated application requesting an effective date of September 26, 2016.  CMS Ex. 4.  On March 9, 2017, Novitas issued a notice letter informing Petitioner that her reassignment was approved effective January 9, 2017.  CMS Ex. 3.

2. The effective date of reassignment for Dr. Richards’ Medicare payments is January 9, 2017.

The effective date for reassignment of Medicare billing privileges for physicians, non‑physician practitioners, and physician or non‑physician practitioner organizations is the later of the “date of filing” or the date 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

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contractor is able to process to approval.  73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008); see also Donald Dolce, M.D., DAB No. 2685 at 8 (2016).  As discussed above, CMS also applies the effective date rules for enrollment applications found in 42 C.F.R. § 424.80 to reassignment of Medicare payments.  MPIM § 15.5.20.E.3.

It is undisputed that Novitas received an application to reassign Dr. Richards’ Medicare payments to group 725L (GBMA Clinic) on January 9, 2017.  CMS Ex. 7.  It is also undisputed that Novitas subsequently approved that application after a period of development.  CMS Ex. 3.  Accordingly, as required by regulation, the effective date of reassignment of Dr. Richards’ Medicare payments is January 9, 2017.

Petitioner spends considerable time in her brief discussing the reenrollment and reassignment applications she submitted in September 2016.  P. Br.  Petitioner states that the September 2016 reassignment application included an incorrect group number, which was the result of administrative error.  P. Br. at 2.  She seems to suggest that I should treat her “attempt to enroll. . .with an effective date of September 26, 2016” as a basis to set an earlier effective date for the reassignment application at issue, which she submitted on January 9, 2017.  Id. at 3.  There are several difficulties with this argument.

First, Novitas approved Petitioner’s reassignment application that it received in September 2016.  See P. Ex. 10.  Thus, there is no unfavorable decision regarding that application over which I may exercise jurisdiction.  As Petitioner acknowledges, she (or her representative) completed the Form CMS‑855R incorrectly by misidentifying the entity to which Petitioner intended to reassign her Medicare payments.  Novitas processed the application as it was submitted.

Second, Petitioner’s argument that I should take into consideration her good faith effort to reassign her Medicare payments effective in September 2016 amounts to a request for equitable relief.  I may not set aside CMS’s lawful exercise of its discretion based on principles of equity.  See, e.g., Cent. Kansas Cancer Inst., DAB No. 2749 at 10 (2016); see also James Shepard, M.D., DAB No. 2793 at 9 (2017).

V. Conclusion

I affirm CMS’s determination that the effective date of Dr. Richards’ Medicare payments reassignment is January 9, 2017.