Michael R. Petit, D.O., DAB CR5088 (2018)

Department of Health and Human Services
Civil Remedies Division

Docket No. C-16-399
Decision No. CR5088


Petitioner, Michael R. Petit, D.O., is an osteopathic physician, who practices emergency room medicine with a group medical practice (Tennessee Emergency Physicians, PLLC) in the State of Tennessee.  After the Centers for Medicare & Medicaid Services (CMS) revoked his Medicare billing privileges, he applied to reenroll in the program.  The CMS contractor granted him Medicare billing privileges, effective April 29, 2015, which means an effective enrollment date of May 29, 2015.  Petitioner now challenges that effective date.

Because Petitioner filed his subsequently-approved enrollment application on May 29, 2015, I find that May 29 is the correct effective date of his enrollment, and CMS may allow him to bill retrospectively for up to thirty days prior to that effective date (April 29, 2015).


In a letter dated July 24, 2015, the Medicare contractor, Cahaba Government Benefit Administrators, advised Petitioner Petit that it approved his Medicare enrollment, with an “effective date” of April 29, 2015.  In fact, as I explain below, this represents the date that Petitioner could begin billing the Medicare program; his actual “effective date” of

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enrollment was May 29, 2015.  CMS Exhibit (Ex.) 5.  Petitioner sought reconsideration, asking that his “effective date” (i.e., billing date) be changed to February 12, 2015, the date he began treating Medicare patients in the emergency department of St. Francis Hospital in Memphis, Tennessee.  CMS Ex. 6 at 3-4.  In a reconsidered determination, dated January 12, 2016, the contractor denied Petitioner an earlier effective date.  CMS Ex. 7.

Petitioner appealed.

Although CMS has moved for summary judgment, I find that this matter may be decided on the written record, without considering whether the standards for summary judgment are satisfied.  In my initial order, I instructed the parties to list any proposed witnesses and to submit their written direct testimony.  Acknowledgment and Prehearing Order at 3, 5 (¶¶ 4, 8) (March 23, 2016).  I also directed the parties to indicate which, if any, of the opposing side’s witnesses the party wished to cross-examine.  I pointed out that an in‑person hearing would be needed only if a party wishes to cross-examine the opposing side’s witness.  Id. at 5 (¶¶ 9, 10).  CMS has no witnesses.  Petitioner indicates that he wishes to call four witnesses, and has (arguably) submitted the written direct testimony for three of them.  However, CMS has not asked to cross-examine any of Petitioner’s witnesses.  Because there will be no cross-examination of witnesses, an in-person hearing would serve no purpose.  I may therefore decide the case based on the written record, without considering whether the standards for summary judgment are satisfied.

With its brief (CMS Br.), CMS submits twelve exhibits (CMS Exs. 1-12).  In the absence of any objections, I admit into evidence CMS Exs. 1-12.

With its brief (P. Br.), Petitioner submits 15 exhibits (P. Exs. 1-15).  One is a copy of its request for review by an administrative law judge (P. Ex. 1).  One is a legitimate written declaration (P. Ex. 2).  Two exhibits are written declarations that authenticate attached documents (P. Exs. 5, 9) but are neither relevant nor material to the issue before me.  See 42 C.F.R. § 498.60(b) (directing the ALJ to admit documents that are relevant and material).  The remaining documents are mostly irrelevant, and Petitioner now proffers them here for the first time.  As I explained in my initial order, the regulations governing these proceedings mandate that I exclude such documentary evidence unless I find good cause for Petitioner’s failing to submit it earlier.  42 C.F.R. § 498.56(e).  In that order, I directed Petitioner to identify the evidence as new and to explain why good cause exists for me to receive it.  Petitioner has done neither.  I therefore exclude P. Exs. 3-15.  I admit into evidence P. Exs. 1 and 2.

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Petitioner filed his subsequently-approved application on May 29, 2015, and his Medicare enrollment can be no earlier than that date.  42 C.F.R. § 424.520(d).1

Enrollment.  Petitioner Petit participates in the Medicare program as a “supplier” of services.  Social Security Act § 1861(d); 42 C.F.R. § 498.2.  To receive Medicare payments for the services he furnishes to program beneficiaries, a prospective supplier must enroll in the program.  42 C.F.R. § 424.505.  “Enrollment” is the process by which CMS and its contractors:  1) identify the prospective supplier; 2) validate the supplier’s eligibility to provide items or services to Medicare beneficiaries; 3) identify and confirm a supplier’s owners and practice location; and 4) grant the supplier Medicare billing privileges.  42 C.F.R. § 424.502.

To enroll, a prospective supplier must complete and submit an enrollment application.  42 C.F.R. §§ 424.510(d)(1), 424.515(a).  An enrollment application is either a CMS‑approved paper application or an electronic process approved by the Office of Management and Budget.  42 C.F.R. § 424.502.2   When CMS determines that a prospective supplier meets the applicable enrollment requirements, it grants Medicare billing privileges, which means that the supplier can submit claims and receive payments from Medicare for covered services provided to program beneficiaries.  The effective date for its billing privileges “is the later of the date of . . . filing” a subsequently-approved enrollment application or “the date that the supplier first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d) (emphasis added).  If it satisfies certain requirements, CMS will allow a supplier to bill retrospectively for up to 30 days prior to the effective date.  42 C.F.R. § 424.521(a)(1).

Enrollment revocation.  Petitioner’s license to practice osteopathic medicine in the State of Ohio expired on April 1, 2014.  CMS Ex. 12 at 1.  Because he no longer held that medical license, the Medicare contractor for Ohio (CGS Administrators, LLC) revoked his enrollment and billing privileges, effective April 1, 2014, and barred him from Medicare participation for one year, until March 31, 2015.  42 C.F.R. § 424.516(a)(2); CMS Ex. 8 at 5; CMS Ex. 9 at 4.

Petitioner now complains about the process by which his enrollment was revoked and claims that he did not know that his billing privileges had been revoked, arguments he did not raise initially or on reconsideration.  In any event, the arguments are irrelevant to the

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outcome here.  In order to bill the Medicare program as part of his Tennessee group practice, he had to submit a new enrollment application.  Because he filed his new enrollment application after March 31, the one-year bar on his Medicare enrollment had expired; it would therefore not affect the effective date of his reenrollment, which is governed by section 424.520(d).

Effective date of enrollment.  Here, Petitioner began working for Tennessee Emergency Physicians, PLLC on February 12, 2015.  P. Ex. 2 at 1-2 (Donegan Decl. ¶ 2); see CMS Ex. 2 at 1.  In applications signed May 15, 2015, he applied for enrollment in the Medicare program and to assign his benefits to his new employer.  CMS Exs. 1, 2.  The Medicare contractor received his applications on May 29, 2015; they are date-stamped May 29, 2015.  CMS Ex. 1 at 1; CMS Ex. 2 at 1; see CMS Exs. 3, 4.  Thus, the date he filed his subsequently-approved enrollment application, May 29, 2015, is the correct effective date for his enrollment.

Pursuant to 42 C.F.R. § 424.521(a)(1), CMS has allowed Petitioner to bill retrospectively, giving him an effective billing date of April 29, 2015.  Medicare contractors have created confusion because they are inclined to conflate the effective date with the retrospective billing date, as the contractor did here.  The original notice letters give April 29, 2015 as the “Effective Date,” which it is not.  It is the retrospective billing date.  CMS Ex. 5 at 1.  The distinction is important; I have the authority to review “the effective date of . . . supplier approval.”  42 C.F.R. § 498.3(b)(15).  But nothing in the regulations gives me the authority to review CMS’s determinations regarding retrospective billing.  Fortunately, the reconsidered determination corrects the inaccuracy because it notes that Petitioner Petit’s application was received on May 29 and it refers to April 29, as the “effective date of billing.”  CMS Ex. 7 at 2.

According to Petitioner, his employer accidently sent his applications to the wrong Medicare contractor.  That contractor returned them on May 27, and Petitioner immediately sent them to the correct address, requesting an effective date of February 12, 2015.  P. Ex. 1.  Petitioner claims that the applications were “timely” submitted, relying on a statement from the practice’s senior credentialing manager.  In his affidavit, the credentialing manager says that Petitioner’s completed application “would have been timely submitted no later than March 10, 2015, in order for Dr. Petit to receive an effective [billing] date of February 12, 2015.”  P. Ex. 2 at 2 (Donegan Decl. ¶ 5).  But this statement is meaningless.  The subsequently-approved applications were not submitted to anyone on March 10.  They were not even signed until May 15.  Petitioner then sent them to the incorrect address.  When they were returned, Petitioner finally filed them.  CMS has established that the contractor received them on May 29, and that is the effective date for Petitioner’s Medicare enrollment.

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Because Petitioner filed its subsequently-approved reenrollment application on May 29, 2015, CMS properly granted his Medicare enrollment effective that date.

  • 1. I make this one finding of fact/conclusion of law.
  • 2. CMS’s electronic process is referred to as PECOS (Provider Enrollment, Chain, and Ownership System).