Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Gaurav Lakhanpal, MD
(NPI: 1013172907 / PTAN: 355099ZF5T),
Centers for Medicare & Medicaid Services
Docket No. C-18-338
Decision No. CR5219
Petitioner, Gaurav Lakhanpal, MD, reassigned his right to file claims with and receive payment from Medicare to Ravinder K. Rustagi, MD, PA effective July 21, 2017, with retrospective billing pursuant to the reassignment permitted beginning June 21, 2017.
I. Procedural History
Novitas Solutions, a Medicare administrative contractor (MAC), notified Petitioner by letter dated August 18, 2017, that Petitioner’s Medicare application to reassign his right to file claims with and receive payment from Medicare to Ravinder K. Rustagi, MD, PA was approved with retrospective billing privileges effective June 21, 2017. Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 43-46. Petitioner requested a reconsidered determination by letter dated August 28, 2017. CMS Ex. 1 at 50.
On November 20, 2017, the MAC notified Petitioner that the reconsidered determination upheld an effective date of reassignment of July 21, 2017, with retrospective billing beginning June 21, 2017. CMS Ex. 1 at 1-4.
Petitioner requested a hearing before an administrative law judge (ALJ) by letter postmarked December 8, 2017 (RFH). The case was assigned to me and an Acknowledgement and Prehearing Order was issued at my direction.
CMS filed a motion for summary judgment with CMS Exs. 1 and 2 on January 22, 2018. Petitioner filed a response (P. Br.) on February 27, 2018 with no exhibits. CMS filed a reply brief and CMS Ex. 3 on April 5, 2018. Petitioner did not object to my consideration of CMS Exs. 1 through 3 and they are admitted.
A. Applicable 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.1 Act §§ 1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395(u)(h)(1)). Administration of the Part B program is through the MACs. Act § 1842(a) (42 U.S.C. § 1395u(a)).
The Act requires the Secretary of Health and Human Services (the Secretary) to issue regulations that establish a process for the enrollment of providers and suppliers, including the right to a hearing and judicial review of certain enrollment determinations. Act § 1866(j) (42 U.S.C. § 1395cc(j)). Pursuant to 42 C.F.R. § 424.505,2 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 Medicare beneficiary, one who is entitled to benefits under Medicare Part A or enrolled under Part B, is the individual covered by Medicare and entitled to request payment for Medicare-covered health care items and services. Act § 1802. The assignment of the right to file a claim for Medicare coverage of health care charges from a Medicare beneficiary to a Medicare-enrolled provider or supplier is limited. The reassignment of the right to file a Medicare claim from an enrolled provider or supplier to another is very limited. 42 C.F.R. pt. 424, subpt. F. Reassignment to an employer is permitted from a supplier, such as a physician, when reassignment is required as a condition of employment. 42 C.F.R. § 424.80(b)(1).
The Secretary has issued regulations that establish the right to a hearing and judicial review of certain enrollment determinations. Act § 1866(j) (42 U.S.C. § 1395cc(j)). Pursuant to sections 1866(h)(1) and (j)(8), a provider or supplier whose enrollment application or renewal application is denied is entitled to an administrative hearing and judicial review. Appeal and review rights in provider and supplier cases are specified by 42 C.F.R. §§ 424.545 and 498.5.
Whether I have jurisdiction to review the determination by CMS or a MAC of the effective date of reassignment of the right to file claims with and to receive payment from Medicare;
Whether summary judgment is appropriate; and
The effective date of reassignment.
C. Findings of Fact, Conclusions of Law, and Analysis
My conclusions of law are set forth in bold text followed by my findings of undisputed fact and analysis.
1. There is authority for me to conduct review in this case.
Petitioner seeks review of the MAC’s reconsidered determination of the effective date of Petitioner’s right to file claims with and obtain payment from Medicare for care and services delivered to Medicare-eligible beneficiaries.
The Secretary promulgated the regulations at 42 C.F.R. §§ 424.545 and 498.5 that specify review and appeal rights in provider and supplier cases. The Secretary has not specifically stated that a supplier has a right to ALJ review of CMS or MAC determinations related to reassignment of the right to file claims with and receive payment from Medicare, including the effective date of reassignment. 42 C.F.R. §§ 424.70-.90, 424.545, 498.3(b), 498.5. However, 42 C.F.R. § 498.3(b)(15), provides that “[t]he effective date of a Medicare provider agreement or supplier approval” is an initial determination. The Board has given an expansive interpretation to 42 C.F.R. § 498.3(b)(15) and found a right to ALJ review of the effective date of enrollment in Medicare as well as the effective date of the reactivation of billing privileges. See, e.g., Victor Alvarez, M.D., DAB No. 2325 at 3-10 (2010) (determination of effective date of enrollment in Medicare is an initial determination subject to ALJ review and Board appeal); Urology Group of NJ, LLC, DAB No. 2860 at 6 (2018) (no right to review of a CMS or MAC determination to deactivate billing privileges but right to review of the determination of the effective date of reactivation). Applying the reasoning of the Board in Alvarez and Urology Group, I conclude that a supplier has the right to ALJ review of the CMS or MAC determination of the effective date of reassignment. However, the only determination of CMS or the MAC that is subject to my review in a provider and supplier case is the reconsidered determination. See 42 C.F.R. § 498.5(l)(1)-(2); Neb Group of Ariz. at 7 (2014).
2. Summary judgment is appropriate.
I have concluded, based on the rationale of the Board in prior cases, that Petitioner has a right to ALJ review of the determination of the effective date of reassignment of his right to file claims with and receive payment from Medicare. A hearing on the record before an ALJ is required under the Act. Act §§ 205(b), 1866(h)(1), (j); Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (2004). The procedures governing hearings in provider and supplier enrollment cases are at 42 C.F.R. pt. 498. A party may waive appearance at an oral hearing but must do so affirmatively in writing. 42 C.F.R. § 498.66. Petitioner has not waived oral hearing.
CMS filed a motion for summary judgment. Summary judgment is not automatic but is limited to certain specific conditions. The regulations do not establish or recognize a summary judgment procedure. However, the Board has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498. See, e.g., Crestview Parke, 373 F.3d at 748-51; Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997). The Board has also recognized that the Federal Rules of Civil Procedure do not apply in administrative adjudications such as this, but the Board has accepted that Fed. R. Civ. P. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate. Furthermore, a summary judgment procedure was adopted as a matter of judicial economy within my authority to regulate the course of proceedings and made available to the parties in the litigation of this case by my Prehearing Order. The parties were given notice by the Prehearing Order that summary judgment is an available procedural device and that the law as it has developed related to Fed. R. Civ. P. 56 will be applied. Prehearing Order ¶¶ III.D. & G.
Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law. In determining whether there are genuine issues of material fact for trial, the reviewer must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor. The party requesting summary judgment bears the burden of showing that there are no genuine issues of material fact for trial and/or that it is entitled to judgment as a matter of law. Generally, the non-movant may not defeat an adequately supported summary judgment motion by relying upon the denials in its pleadings or briefs but must furnish evidence of a dispute concerning a material fact, i.e., a fact that would affect the outcome of the case if proven. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 5 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 5 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein).
The standard for deciding a case on summary judgment and an ALJ’s decision-making in deciding a summary judgment motion differs from that used in resolving a case after a hearing. On summary judgment, the ALJ does not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence, as would be done when finding facts after a hearing on the record. Rather, on summary judgment, the ALJ construes the evidence in a light most favorable to the non-movant and avoids deciding which version of the facts is more likely true. Holy Cross Vill. At Notre Dame, Inc., DAB No. 2291 at 5 (2009). The Board also has recognized that on summary judgment it is appropriate for the ALJ to consider whether a rational trier of fact could find that the party’s evidence would be sufficient to meet that party’s evidentiary burden. Dumas Nursing & Rehab., L.P., DAB No. 2347 at 5 (2010). The Secretary has not
provided in 42 C.F.R. pt. 498 for the allocation of the burden of persuasion or the quantum of evidence required to satisfy the burden. However, the Board has provided some persuasive analysis regarding the allocation of the burden of persuasion in cases subject to 42 C.F.R. pt. 498. Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005).
In this case, I conclude that Petitioner has failed to show that there is a genuine dispute as to any material fact as discussed hereafter pertinent to determination of the correct effective date of Petitioner’s reassignment of his right to file claims with and receive payment from Medicare. The facts are undisputed and CMS is entitled to judgment as a matter of law. Accordingly, I conclude that summary judgment is appropriate.
3. The effective date of Petitioner’s reassignment of his right to file claims with and receive payment from Medicare, which is determined pursuant to 42 C.F.R. § 424.520(d), is July 21, 2017.
4. The beginning of the period of retrospective billing privileges on the reassigned claims, which is determined pursuant to 42 C.F.R. § 424.520(d), is June 21, 2017.
The parties were advised in the Prehearing Order ¶ III.G that, for purposes of ruling on a motion for summary judgment, a fact alleged and not specifically denied would be accepted as true, and offered evidence would be considered admissible and true absent a specific objection. The following findings of fact are based upon the undisputed or conceded facts. I do not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence in deciding a summary judgment motion. The evidence is viewed in the light most favorable to Petitioner, the nonmovant, with all inferences drawn in Petitioner’s favor.
Petitioner was enrolled in Medicare. In 2014, Petitioner reassigned his right to file claims with and receive payments from Medicare to the Center for Vascular Medicine, Inc. CMS Ex. 2; CMS Br. at 2, 7.
On May 25, 2017, the MAC received a CMS-855R from Petitioner reassigning his right to file claims with and receive payments from Medicare to Ravinder K. Rustagi, MD, PA. CMS Ex. 1 at 5-11, CMS Br. at 2. The MAC advised Petitioner by letter dated June 15, 2017, it could reject Petitioner’s reassignment application if Petitioner did not provide requested information within 30 calendar days, which was Saturday, July 15, 2017. The MAC requested that Petitioner provide his correct Social Security Number (SSN) in section 3 of the CMS-855R and a new certification statement (section 6, CMS-855R) that
Petitioner signed and dated. CMS Ex. 1 at 12-14; CMS Br. at 2. On July 17, 2017, two days after the July 15, 2017 deadline, the MAC received Petitioner’s response with a different SSN in section 3 of the CMS-855R but the page of the CMS-855R with the certification in section 6 appeared to be the same certification as previously submitted and not a new certification. CMS Ex. 1 at 15, 20-21; CMS Br. at 2. The MAC notified Petitioner by letter dated July 17, 2017, that it rejected Petitioner’s reassignment application because it contained an incorrect SSN in section 3 of the CMS-855R and a new certification statement was not filed. The MAC advised Petitioner that he must file a new reassignment application if he desired to effect reassignment. CMS Ex. 1 at 34; CMS Br. at 2. CMS offered no evidence showing when Petitioner actually received the June 15, 2017 notice and makes no assertion of fact in that regard.
Petitioner does not dispute that CMS received Petitioner’s new reassignment application (CMS-855R) on July 21, 2017. CMS Ex. 1 at 36-42; CMS Br. at 2. On August 18, 2017, the MAC notified Petitioner that his reassignment application was approved with retrospective billing under the reassignment approved effective June 21, 2017. CMS Ex. 1 at 43-46; CMS Br. at 2.
Petitioner requested reconsideration by letter dated August 28, 2017. Petitioner specifically requested that his reassignment be approved effective May 15, 2017 or 90 days prior to June 21, 2017. Petitioner admits in the request for reconsideration that the SSN in the original CMS-855R was incorrect and that the correct SSN was not provided to the MAC until July 17, 2017. CMS Ex. 1 at 50; CMS Br. at 2.
On November 20, 2017, a MAC hearing officer upheld an effective date of reassignment of July 21, 2017, the date Petitioner’s new reassignment application (CMS-855R) was received by the MAC. Retrospective billing under the reassignment was permitted effective June 21, 2017. CMS Ex. 1 at 1-4; CMS Br. at 2.
In his request for hearing, Petitioner states that he began working for Ravinder K. Rustagi, MD, PA on June 6, 2017. Petitioner requests that retrospective billing under the reassignment be permitted as of June 6, 2017, rather than June 21, 2017, as determined on reconsideration. RFH.
In his response to the CMS motion for summary judgment, Petitioner admits an incorrect SSN was listed in the original CMS-855R. Petitioner states that the MAC’s June 15, 2017 request for the correct SSN was received from the MAC by facsimile on July 14, 2017. I accept this assertion as true for purposes of summary judgment. Petitioner states that July 15 and 16, 2017 were weekend days and admits that Petitioner did not respond to the MAC request for information until Monday, July 17, 2017. Petitioner does not offer any explanation for why no response was given the MAC on July 14, 2017, when Petitioner admits to receiving the copy of the June 15, 2017 MAC request for information by facsimile.
There are two actions of the MAC that concern Petitioner. The MAC rejected Petitioner’s first reassignment application. Subsequently, the MAC processed Petitioner’s second reassignment application, but Petitioner wanted an earlier effective date of reassignment and/or an earlier date for retrospective billing under the reassignment.
Petitioner has no right to review of the rejection of the first reassignment application and I have no authority to conduct any review of that action. Under 42 C.F.R. pt. 424, subpt. P, the terms reject or rejected mean that an enrollment application was not processed due to incomplete information or that additional or corrected information was not timely received from the provider or supplier who filed that application. 42 C.F.R. § 424.502. Pursuant to 42 C.F.R. § 424.525(a)(1), CMS or the MAC may reject an enrollment application if a provider or supplier fails to furnish all requested information within 30 calendar days. CMS or the MAC has discretion to extend the 30-day period pursuant to 42 C.F.R. § 424.525(b). However, there is no right to review of the rejection of an application. 42 C.F.R. § 424.525(d). When an application is rejected, the provider or supplier must file a complete, new application with all supporting documents. 42 C.F.R. § 424.525(c). Accordingly, I conclude that I may not review the MAC’s rejection of Petitioner’s initial reassignment application.
Even if I were to accord review of the determination to reject the initial application, the evidence supports the rejection. Petitioner admits he did not provide the MAC the correct SSN until July 17, 2017, two days after the Saturday, July 15, 2017 deadline for submission. Petitioner failed to timely submit the correct SSN even though Petitioner admits he received a reminder in the form of a copy of the MAC’s June 15, 2017 letter by facsimile on July 14, 2017, before the deadline for submission. Certainly, CMS or the MAC had discretion to extend the 30-day deadline, but I have no authority to second guess the exercise of discretion by CMS or the MAC not to extend the deadline.
Based on my analysis of Board interpretive rules in various decisions, I have concluded Petitioner does have a right to my review of the reconsidered determination of the effective date of Petitioner’s reassignment of his right to file claims with and receive payment from Medicare.
The Secretary’s regulations do not specify how to determine an effective date for an authorized reassignment. 42 C.F.R. pt. 424, subpt. F. However, CMS has addressed the determination of the effective date of a reassignment by policy or interpretive rules, in effect at the time of the reconsidered determination and found in the Medicare Program Integrity Manual (MPIM), CMS Pub. 100-08, Ch. 15, § 15.5.20 (Rev. 717, Eff. May 15, 2017). MPIM § 15.5.20A requires that a CMS-855R be completed and filed by an
individual that wants to reassign benefits to an eligible entity or terminate a reassignment. Both the party seeking to reassign (reassignor) and the party to whom reassignment is intended (reassignee) must be enrolled in Medicare. A party seeking to reassign that is not enrolled may submit a CMS-855I concurrently with the CMS-855R to accomplish enrollment and reassignment. If the party receiving the reassignment is not enrolled, that party must file the appropriate version of form CMS-855. MPIM § 15.5.20A. The MPIM § 15.5.20E.3 provides:
If the Form CMS-855R is accompanied by an initial Form CMS-855I or submitted as a “stand-alone” form (that is, a Form CMS-855R is submitted as a new reassignment, such as when an enrolled physician who is operating as a sole proprietor joins a group practice and reassigns his benefits to the group), the effective date of the enrollment and the reassignment shall be consistent with the 30-day rule (i.e., the later of the date of filing or the date the reassignor first began furnishing services at the new location) specified in section 15.17 of this chapter.
MPIM § 15.5.20E.3. MPIM § 15.17, which sets out CMS’s policy on establishing an effective date of Medicare billing privileges, incorporates the provisions of 42 C.F.R. §§ 424.520(d) and 424.521(a), the regulations that govern determination of the effective date of enrollment and authorized period of retrospective billing for physicians, non-physician practitioners, physician and non-physician practitioner organizations, and ambulance suppliers.
The effective date of enrollment in Medicare of a physician, non-physician practitioner, and physician and non-physician practitioner organizations is governed by 42 C.F.R. § 424.520(d). The effective date of enrollment for a physician or non-physician practitioner may only be the later of two dates: the date when the physician 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 physician first began providing services at a new practice location. 42 C.F.R. § 424.520(d). An application is “filed” when it is received by the MAC. Alexander C. Gatzimos, MD, JD, LLC d/b/a Michiana Adult Medical Specialists, DAB No. 2730 (2016).
An enrolled physician or non-physician practitioner 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. Retrospective billing for up to 90 days prior to the effective date of enrollment is permitted only in case of a Presidentially-declared disaster pursuant to 42 U.S.C. §§ 5121-5206. 42 C.F.R. § 424.521.
Applying the regulations in this case is straightforward. There is no dispute Petitioner started working for Ravinder K. Rustagi, MD, PA on June 6, 2017. There is also no dispute that on July 21, 2017, Petitioner filed (that is, the date it was received by the MAC) his reassignment application that was processed to completion by the MAC. The later of the two dates is July 21, 2017. Accordingly, the effective date of reassignment may only be July 21, 2017. Pursuant to 42 C.F.R. § 424.521, retrospective billing is permissible for only 30 days, in this case, beginning on June 21, 2017. Retrospective billing for 90 days as Petitioner suggests in his request for hearing is not permitted except in the case of a Presidentially-declared disaster, which did not occur in this case.
Petitioner’s arguments may be construed to be a request for equitable relief. But, I have no authority to grant equitable relief. US Ultrasound, DAB No. 2302 at 8 (2010). I am also required to follow the Act and regulations and have no authority to declare statutes or regulations invalid. 1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009).
For the foregoing reasons, I conclude that Petitioner reassigned his right to file claims with and receive payment from Medicare to Ravinder K. Rustagi, MD, PA effective July 21, 2017, with retrospective billing pursuant to the reassignment permitted beginning June 21, 2017.
Keith W. Sickendick Administrative Law Judge
1. Petitioner is a “supplier” 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)). A “provider of services,” commonly shortened to “provider,” includes hospitals, critical access hospitals, skilled nursing facilities, comprehensive outpatient rehabilitation facilities, home health agencies, hospice programs, and a fund as described in sections 1814(g) and 1835(e) of the Act. Act § 1861(u) (42 U.S.C. § 1395x(u)). The distinction between providers and suppliers is important because they are treated differently under the Act for some purposes.
- back to note 1 2. Citations are to the 2016 revision of the Code of Federal Regulations (C.F.R.), which was in effect at the time of the initial determination, unless otherwise indicated. An appellate panel of the Departmental Appeals Board (Board) concluded in Mark A. Kabat, D.O., DAB No. 2875 at 9-11 (2018) that the applicable regulations are those in effect at the time of the initial determination. However, the Board previously concluded that the only determination subject to my review in a provider and supplier enrollment case such as this is the reconsidered determination. Neb Group of Ariz. LLC, DAB No. 2573 at 7 (2014). In this case, the regulations did not change between the issuance of the initial and reconsidered determinations. Any citations to earlier revisions of the regulations in this decision do not affect my conclusions of law in this case but are used to show the legal standard in effect at pertinent times.
- back to note 2