Andrew Greenberg, M.D., PA, DAB CR5207 (2018)

DECISION

I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS), sustaining the determination of one of its Medicare contractors to enroll certain practice locations of Petitioner, Andrew Greenberg, M.D., P.A., effective February 1, 2018.1

I. Background

CMS moved for summary judgment and Petitioner, a physician, opposed the motion. With its motion CMS filed six proposed exhibits that it identified as CMS Exhibit (Ex.) 1‑CMS Ex. 6. With his opposition Petitioner filed an unidentified exhibit that I identify as P. Ex. 1.

I do not receive these exhibits into evidence inasmuch as I find no disputed issues of material fact in this case. I refer to some of the exhibits in this decision but only to illustrate facts that are not disputed.

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II. Issue, Findings of Fact and Conclusions of Law

A. Issue

The issue is whether a Medicare contractor correctly assigned an effective Medicare enrollment date of February 1, 2018, to certain practice locations operated by Petitioner.

B. Findings of Fact and Conclusion of Law

By regulation, when a physician supplier enrolls new practice locations in the Medicare program the effective date of participation of those locations is the later of the following: (1) the date of filing of a Medicare enrollment application for those practice locations that is subsequently approved by a Medicare contractor; or (2) the date that the supplier first begins providing services at the new locations. 42 C.F.R. § 424.520(d). I am without authority to grant an earlier effective date than that which the regulation allows.

Here, the undisputed facts establish that Petitioner opened new practice locations during 2017. See CMS Ex. 2 at 17-22. He filed an application to enroll those practice locations that the contractor received on February 1, 2018. CMS Ex. 1; CMS Ex. 2. The contractor approved this application and assigned an effective participation date of February 1, 2018, for the new practice locations. That is the earliest effective date that the contractor lawfully could have assigned to Petitioner's practice locations, given that Petitioner filed his application to enroll these practice locations after he began providing services at them.

Petitioner argues that he delayed filing his application because of problems his office had dealing with the contractor beginning in September 2017. CMS Ex. 6 at 3; Petitioner's Brief at 2. Essentially, Petitioner argues that the contractor did not provide his office with accurate information. He contends that he would have filed an enrollment application sooner but for the allegedly false and fraudulent information that the contractor provided and he asserts that he should not be penalized for delays that are at least partially the contractor's fault.

This is an equitable argument that I am without authority to hear and decide. US Ultrasound, DAB No. 2302 at 8 (2010). I may not base an effective Medicare participation date on equitable grounds especially in the absence of any facts showing that the contractor engaged in affirmative misconduct, such as fraud. Richard Weinberger, M.D. & Barbara Vizy, M.D., DAB No. 2823 at 18-20 (2017). Petitioner has offered nothing to show that the contractor engaged in affirmative misconduct.

In his response to CMS's motion, Petitioner argues that he is entitled to file claims for services that he delivered at his new practice locations beginning 90 days prior to

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February 1, 2018, as opposed to the 30 days granted by the contractor. Petitioner's Brief at 2. Petitioner contends that his practice locations are in a zone designated as a federal disaster area in the wake of Hurricane Irma, a storm that struck the area during 2017. See 42 C.F.R. § 424.521(a)(2).

Petitioner's argument is without merit. The regulation at 42 C.F.R. § 424.521(a)(2) does allow a grace period of up to 90 days for payment of claims but only if the supplier proves that a Presidentially-declared disaster precluded the supplier from filing claims for services provided during that period. Petitioner adduced no facts showing that Hurricane Irma prevented him from filing claims.