Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Molecular MD, LLC, and Sumina Goel, M.D.
(PTANs: 559324 and 559326ZYTG),
Centers for Medicare & Medicaid Services
Docket No. C-17-892
Decision No. CR5041
The effective date of the Medicare enrollment and billing privileges of Petitioners, Molecular MD, LLC, and Sumina Goel, M.D., is September 26, 2016, with retrospective billing privileges beginning August 27, 2016.
I. Background and Procedural History
Petitioners are Dr. Sumina Goel, a physician specializing in nuclear medicine, and the medical practice that she solely owns, Molecular MD, LLC. Centers for Medicare & Medicaid Services (CMS) Exhibits (Exs.) 4 at 1; 7 at 1, 3. Dr. Goel submitted a Form CMS-855R Medicare enrollment application, for the purpose of reassigning benefits to Molecular MD, LLC, that Novitas received on September 26, 2016. CMS Ex. 1. On October 24, 2016, Novitas sent a development letter to Dr. Goel in which it explained that “[t]he supplier to whom benefits are being reassigned must have an application on file . . . before the processing of the reassignment can be completed.” CMS Ex. 2.
Shortly thereafter, on October 25, 2016, Novitas informed Dr. Goel that “[per] our conversation, we are withdrawing your request.”1 CMS Ex. 3.
On January 30, 2017, Petitioners submitted an internet-based Form CMS-855I enrollment application through the Provider, Enrollment, Chain and Ownership System (PECOS). CMS Ex. 4 (Application Data Report, printed February 15, 2017); see CMS Ex. 11 at 2 (reconsidered determination stating that Form CMS-855I was received on January 30, 2017); see also CMS Ex. 7 (Application Data Report, printed March 6, 2017). Novitas approved Petitioners’ Medicare enrollment on March 6, 2017, and assigned an effective date of billing privileges for Petitioners of December 31, 2016, which is 30 days prior to the date of receipt of the January 30, 2017 application.2 See CMS Ex. 8.
In a letter dated April 12, 2017, Petitioners requested reconsideration of the March 6, 2017 determination and specifically requested that the effective date of enrollment be changed to May 1, 2016. CMS Ex. 9. In support, Dr. Goel explained that because she had participated as a Medicare supplier with another medical practice, Cardiology Clinic of Muskogee, she “believed [she] was already a credentialed provider for Medicare . . . .” CMS Ex. 9 at 1.
Novitas issued a reconsidered determination on June 22, 2017, at which time it assigned an earlier effective date of enrollment, explaining:
Although you requested May 1, 2016 in the reconsideration request, Novitas Solutions can only go back 30 days from the receipt date of the CMS-855R application received September 26, 2016 per the effective date regulations stated above. Rather than withdrawing the CMS-855R
application, Novitas should have developed for the completion of the CMS-855I application.
CMS Ex. 11 at 2.
Petitioners submitted a request for a hearing by an administrative law judge (ALJ) via DAB E-File on July 11, 2017. I issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) on July 25, 2017, in which I directed the parties to file their respective pre-hearing exchanges, to include briefs and supporting exhibits, by specified deadlines. I also gave notice in Section 4 of my Pre-Hearing Order that a party may file a motion for summary judgment with its pre-hearing exchange.
CMS filed a motion for summary judgment and a pre-hearing brief (CMS Br.), along with CMS Exs. 1 through 12, on August 29, 2017. After I issued an Order to Show Cause due to Petitioners’ failure to timely file a pre-hearing exchange as directed by my Pre-Hearing Order, Petitioners filed, inter alia, a duplicate copy their July 2017 request for hearing as their pre-hearing exchange.3
In the absence of any objections, I admit CMS Exs. 1 to 12. Neither party has requested an in-person hearing, and the record is closed. See Pre-Hearing Order, § 4, 7, 9 (setting the deadlines for filings and requests for cross-examination). The matter is ready for a decision on the merits.4
I have jurisdiction to decide this case. See 42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2).
The issue in this case is:
Whether the effective date of Petitioners’ Medicare enrollment and billing privileges is September 26, 2016, with a retroactive effective date of billing privileges of August 27, 2016.
B. Background 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. Act §§ 1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395u(h)(1)). Petitioners are “suppliers” of services 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)). Pursuant to 42 C.F.R. § 424.505, 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 effective date of enrollment in Medicare of a physician or physician organization is governed by 42 C.F.R. § 424.520(d). Pursuant to section 424.520(d), the effective date of enrollment for a physician or physician organization may only be the later of two dates: the date when the practitioner filed an application for enrollment that was subsequently approved by a Medicare contractor charged with reviewing the application on behalf of CMS; or, the date when the practitioner first began providing services at a new practice location. As applicable here, an enrolled physician or physician organization may retrospectively bill Medicare for services provided to Medicare-eligible beneficiaries up to 30 days prior to the effective date of enrollment, if circumstances precluded enrollment before the services were provided. 42 C.F.R. § 424.521(a).
C. Findings of Fact, Conclusions of Law, and Analysis5
1. Pursuant to 42 C.F.R. § 424.520(d), Petitioners’ effective date of Medicare enrollment is September 26, 2016.
2. Petitioners were authorized, pursuant to 42 C.F.R. § 424.521(a)(1), to bill Medicare for services provided to Medicare-eligible beneficiaries up to 30 days prior to the effective date of their enrollment, i.e., beginning on August 27, 2016.
Petitioners request that the effective date of their Medicare enrollment and billing privileges be changed to May 1, 2016. However, Petitioners do not dispute that they did not submit a Medicare enrollment application earlier than September 26, 2016.6 CMS Ex. 1. As a result, the earliest possible effective date for Petitioners’ Medicare enrollment and billing privileges is September 26, 2016, the date of filing of the initial application, as the regulation specifically provides that the effective date is the later of the date of filing a Medicare enrollment application that was subsequently approved or the date services were first provided. 42 C.F.R. § 424.520(d). Retrospective billing may be permitted for 30 days prior to the effective date of enrollment and billing privileges pursuant to 42 C.F.R. § 424.521, and Novitas allowed Petitioners to bill for services provided up to 30 days prior to the submission of the application, August 27, 2016. CMS Ex. 11. Pursuant to 42 C.F.R. § 424.520(d), the effective date of Petitioners’ Medicare enrollment cannot be earlier than September 26, 2016, and the earliest possible effective date of billing privileges is 30 days earlier, August 27, 2016, in accordance with 42 C.F.R. § 424.521(a)(1).
Petitioners have not submitted evidence supporting an earlier effective date of enrollment and billing privileges, nor have they disputed CMS’s argument that “Novitas could only grant a retrospective billing date thirty (30) days from the receipt date of the CMS-855R that it received on September 26, 2016.” CMS Br. at 1-2. Rather, Petitioners raise only equitable arguments, contending that they were unaware that they had to be “re-credentialed” until August 2016, when their Medicare claims were rejected. Request for Hearing. Although it is unfortunate that Dr. Goel mistakenly believed that, because she
had participated as a Medicare supplier with another medical practice, she did not need to enroll her new practice and herself in the Medicare program, an ignorance of Medicare program requirements is not an appropriate basis to change an effective date. See CMS Ex. 9. Finally, Petitioners argue that they will incur a loss of $1,900 in unreimbursed claims if the effective date of billing privileges remains August 27, 2016. Request for Hearing; see CMS Ex. 9 at 2-3. Likewise, the amount of loss is not a relevant factor for consideration, and the only relevant evidence, for purposes determining whether an earlier effective date of billing privileges is warranted, is evidence concerning the date Petitioners submitted an enrollment application. Petitioners have not submitted any evidence, much less alleged, that they submitted a Medicare enrollment application that could be processed to approval earlier than September 26, 2016; in the absence of such evidence, Petitioners’ equitable arguments are not persuasive. Although Petitioners have professed ignorance of enrollment requirements, they have not identified any error by Novitas or CMS that I, as the presiding ALJ, am empowered to rectify. See 42 C.F.R. § 424.520(d) (directing earliest possible effective date for enrollment); 42 C.F.R. §§ 498.3, 498.5 (addressing initial determinations that may be appealed to an ALJ). Petitioners’ request amounts to a request for equitable relief, and I simply do not have the authority to grant equitable relief in the form of an earlier effective date of enrollment. US Ultrasound, DAB No. 2302 at 8 (2010) (“[n]either the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”). Petitioners point to no authority by which I may grant them relief from the applicable regulatory requirements, and I have no authority to declare statutes or regulations invalid or ultra vires. 1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (“[a]n ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground.”).
For the foregoing reasons, I conclude that the effective date of Petitioners’ Medicare enrollment and billing privileges is September 26, 2016, with a 30-day period for retrospective billing beginning on August 27, 2016.
Leslie C. Rogall Administrative Law Judge
1. Novitas later acknowledged that it should have requested additional development, rather than “withdrawing” the enrollment request. CMS Ex. 11 at 2.
- back to note 1 2. Although an effective date of enrollment is set in accordance with 42 C.F.R. § 424.520(d), CMS or its contractor may permit retrospective billing for 30 days prior to the effective date if “circumstances precluded enrollment in advance of providing services to Medicare beneficiaries.” 42 C.F.R. § 424.521(a)(1). Novitas favorably assigned a December 31, 2016 effective date of enrollment based on its apparent interpretation that the 30-day retrospective billing provision in 42 C.F.R. § 424.521(a) allowed for an earlier date of enrollment. CMS Ex. 8; see CMS Ex. 11.
- back to note 2 3. Despite Petitioners’ failure to file a pre-hearing exchange that complies with the directives in the Pre-Hearing Order and Order to Show Cause, I have nonetheless issued this decision on the merits rather than dismissing the request for hearing. See Pre-Hearting Order, § 4, 5 (requiring that Petitioners, after receiving and reviewing CMS’s pre-hearing exchange, submit a brief addressing all issues of law and fact, along with supporting exhibits). In addition to re-submitting their request for hearing, Petitioners submitted a duplicate copy of the reconsidered determination that has been admitted into the evidentiary record as CMS Ex. 7. Petitioners also submitted a duplicate copy of a list of patients they treated during the period of deactivation, and that list has been admitted as pages 2 and 3 of CMS Ex. 9.
- back to note 3 4. CMS has argued that summary disposition is appropriate. It is unnecessary in this instance to address the issue of summary disposition, as neither party has requested an in-person hearing.
- back to note 4 5. Findings of fact and conclusions of law are set forth in bold and italics.
- back to note 5 6. Novitas construed that it received the enrollment application that it processed to approval on September 26, 2016, when in actuality, it received only a reassignment of benefits application on that date. However, based on its concession of error in processing the enrollment request, Novitas, for purposes of assigning the most favorable effective date possible, considered the receipt date of the later enrollment application to be September 26, 2016. CMS Ex. 11 at 2.
- back to note 6