John Fox, M.D., DAB CR5119 (2018)

Department of Health and Human Services
Civil Remedies Division

Docket No. C-17-728
Decision No. CR5119


Noridian Healthcare Solutions, Inc. (Noridian), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), approved the request of John Fox, M.D. (Petitioner or Dr. Fox), to enroll in Medicare and reassign his right to receive Medicare payments with an effective date of January 9, 2017.  Petitioner requested a hearing before an administrative law judge to request an earlier effective date.  Because Noridian approved Petitioner’s enrollment and reassignment application that it received on January 9, 2017, it correctly determined that the effective date of reassignment for Petitioner’s right to receive Medicare payments is January 9, 2017.  Therefore, I affirm the effective date determination.

I. Background

Petitioner is a physician licensed to practice in Idaho, specializing in Obstetrics and Gynecology.  CMS Exhibit (Ex.) 3 at 5, 7.  Petitioner submitted a Medicare enrollment application consisting of Forms CMS-855I and CMS-855R to enroll in Medicare and reassign his right to be reimbursed by Medicare to Walter Knox Memorial Hospital d/b/a

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Valor Health (Valor).  CMS Ex. 2; CMS Ex. 3.  Noridian received the application on March 10, 2016.  CMS Ex. 1 ¶ 4.  Noridian approved the application with an effective date of February 9, 2016.  CMS Ex. 4 at 1.

On October 11, 2016, the contact person for Petitioner’s private practice submitted an electronic Form CMS-855R signed by Petitioner, which requested an enrollment end date of February 10, 2016.  CMS Ex. 5.  Noridian mailed a notice to Petitioner’s contact person, confirming the disenrollment.  CMS Ex. 6.

In November 2016, Petitioner’s contact person realized she had mistakenly disenrolled Petitioner.  CMS Ex. 10 at 2-9.  Petitioner’s representative in this appeal, the Business Office Manager at Valor, submitted a new CMS‑855R requesting Petitioner’s re‑enrollment and reassignment of his right to receive Medicare payments to Valor with an effective date of February 9, 2016.  CMS Ex. 7.  Noridian received the CMS-855R on January 9, 2017, and subsequently approved the application, effective January 9, 2017.  CMS Ex. 1 ¶ 9; CMS Ex. 8.  Petitioner requested reconsideration, seeking an effective date of February 9, 2016.  CMS Ex. 10 at 2.  In response, Noridian issued a reconsidered determination concluding that January 9, 2017, was the correct effective date.  Request for Hearing Supporting Document (Docket Entry 1a in E-File).

Petitioner requested a hearing before an administrative law judge, and the case was assigned to me.  I issued an Acknowledgment and Pre-Hearing Order, dated June 8, 2017 (Pre-Hearing Order), which 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 thirteen proposed exhibits (CMS Exs. 1-13).  Petitioner filed a brief (P. Br.), did not offer any proposed exhibits, and did not object to the exhibits offered by CMS.  Therefore, in the absence of objection, I admit CMS Exs. 1-11 into the record.1   CMS submitted the written direct testimony of one witness (CMS Ex. 1), but Petitioner has not requested an opportunity to cross-examine the witness.  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 Noridian, acting on behalf of CMS, properly established January 9, 2017, as the effective date of Petitioner’s enrollment and reassignment of his right to receive Medicare payments.

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 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 limit 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,2 the 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.3.3 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 Law4

1. On January 9, 2017, Noridian received Dr. Fox’s application to reassign his right to receive Medicare payments to Valor.

2. The effective date of reassignment of Dr. Fox’s right to receive Medicare payments is January 9, 2017.

The effective date for 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 contractor is able to process to approval.  73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008); 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. § 424.520 to reassignment of Medicare payments.  MPIM § 15.5.20.E.3.

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It is undisputed that Noridian received a Form CMS-855R to reassign Dr. Fox’s right to receive Medicare payments to Valor on January 9, 2017.  CMS Ex. 1 ¶ 9; CMS Ex. 7.  It is also undisputed that Noridian subsequently approved the application.  CMS Ex. 8.  Accordingly, as required by regulation, the effective date of reassignment of Dr. Fox’s right to receive Medicare payments is January 9, 2017.

Petitioner argues that the effective date should be retroactive because the disenrollment was a result of clerical error.  However, Petitioner does not dispute that his contact person requested disenrollment and that he electronically signed the change application requesting disenrollment.  CMS Ex. 5.  The responsibility for reviewing the content of an application lies with the supplier; by signing the application, the supplier certifies that he or she reviewed the application for inaccuracies.  Sandra E. Johnson, CRNA, DAB No. 2708 at 14-15 (2016).  Thus, Dr. Fox is ultimately responsible for the disenrollment, even if it was submitted by his agent in error.  Finally, to the extent Petitioner argues that his disenrollment is inequitable under the circumstances presented, 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

For the reasons explained above, I affirm that the effective date of Dr. Fox’s Medicare enrollment and reassignment of his right to receive Medicare payments is January 9, 2017.

  • 1. CMS Exs. 12 and 13 consist of CMS’s Exhibit List and Witness List, respectively.  As such, the documents are not evidence and need not be admitted.
  • 2. The MPIM, among other authorities, refers to a supplier’s reassignment of Medicare “benefits” to an employer or other entity.  For clarity in this decision, I refer to reassigned benefits as the supplier’s right to receive Medicare payments, since suppliers are not Medicare beneficiaries.
  • 3. CMS added section 15.5.20.E.3 to the MPIM by transmittal R676PI, which was effective December 19, 2016.  See  Thus, the MPIM’s direction to follow the “30-day rule” was applicable to the reassignment application Petitioner submitted in January 2017.
  • 4. My findings of fact and conclusions of law appear as numbered headings in bold italic type.