Michael Graves, M.D., DAB CR5317 (2019)

DECISION

I affirm the reconsidered determination's conclusion that the effective date for the reassignment of Medicare benefits from Michael Graves, M.D. (Petitioner) to Epiphany Dermatology, PA (Epiphany) is January 30, 2017, with a retrospective effective date of December 31, 2016.

I. Background and Procedural History

Petitioner is a physician enrolled in the Medicare program. Petitioner submitted a CMS‑855R form seeking reassignment of Medicare benefits from Petitioner to Epiphany. A Centers for Medicare & Medicaid Services (CMS) contractor received the reassignment application on November 14, 2016. CMS Exhibit (Ex.) Ex. 10.

In a December 15, 2016 letter, the CMS contractor acknowledged receipt of Petitioner's reassignment application, but stated that the following information was missing: the effective date sought for the reassignment (section 1 of the application); information about the supplier to whom Petitioner was reassigning benefits (section 2 of the

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application); and information for the individual practitioner reassigning benefits (section 3 of the application). The letter also stated:

Please complete the missing elements of your application and sign and date a new blank certification statement in Section 6: Certification Statement and Signatures. Note if the only missing element is supporting documentation, a newly signed and dated certification statement is not required. Failure to provide all requested information will cause the application to be rejected.

CMS Ex. 9.

On December 20, 2016, Petitioner faxed a response in which he included the requested information. CMS Ex. 8; Petitioner (P.) Ex. 3. On January 3, 2017, in response to a phone call from a CMS contractor employee, Petitioner faxed a signature/certification statement page for the reassignment application. CMS Ex. 7. Petitioner signed in subsection A of section 6 of the application, but there was no signature in subsection B of section 6. CMS Ex. 7 at 2.

In a January 17, 2017 notice, the CMS contractor rejected Petitioner's reassignment application, noting that Petitioner provided all of the information that had been missing but filed an "INVALID" signature/certification statement page for the reassignment application. The notice stated that Petitioner "must complete a new Medicare enrollment application(s)." CMS Ex. 6; see P. Ex. 2.

Petitioner signed a new CMS-855R reassignment application on January 18, 2017, in which Petitioner requested a November 1, 2016 effective date for the reassignment. CMS Ex. 5. The CMS contractor received the second reassignment application on January 30, 2017. CMS Ex. 5 at 6. In a February 10, 2017 initial determination, the CMS contractor approved reassignment of Medicare benefits from Petitioner to Epiphany effective December 21, 2016. CMS Ex. 4.

Petitioner requested reconsideration, asserting that the effective date for reassignment should be November 1, 2016, based on the original application Petitioner filed. Petitioner argued that the CMS contractor should not have rejected the original application because Petitioner provided additional information to the CMS contractor. CMS Ex. 3.

In a June 6, 2017 reconsidered determination, the CMS contractor found that Petitioner's effective date of reassignment was January 30, 2017, with a retrospective effective date of December 31, 2016. CMS Ex. 1 at 3. In doing so, the reconsidered determination corrected the initial determination's effective date of December 21, 2016, explaining that the effective date was the date the CMS contractor received the second CMS-855R

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reassignment application from Petitioner. Further, the reconsidered determination indicated that a 30-day retrospective period was permitted, allowing a retrospective reassignment effective date of December 31, 2016. CMS Ex. 1 at 3. In response to Petitioner's argument that it had provided all the information requested in relation to the first CMS-855R reassignment application, the reconsidered determination stated:

A development response was received via facsimile on December 20, 2016; however, the response did not include new signatures as requested. Another development response was received on January 3, 2017 via facsimile; however, section 6B was still missing the required signature. On January 17, 2017, the application was closed as non-response rejected correctly per 42 CFR § 424.525 since no response was received.

CMS Ex. 1 at 2.

Petitioner requested a hearing to dispute the reconsidered determination, asserting that his original reassignment application should have been approved because he had timely responded to the CMS contractor's request for additional information. Judge Leslie A. Weyn was assigned to the case and, on September 8, 2017, issued an Acknowledgment and Prehearing Order (Order), which established a submission schedule for prehearing exchanges. In response, CMS filed a brief and CMS Exs. 1-10. Petitioner filed a brief and P. Exs. 1-4. On November 20, 2018, the case was transferred to me.

II. Decision on the Written Record

I admit CMS Exs. 1-10 and P. Exs. 1-4 into the record without objection. Order ¶ 7; Civil Remedies Division Procedures (CRDP) § 14(e).

I decide this case based on the written record because neither party identified any witnesses to testify in this case or submitted written direct testimony for any witnesses. Order ¶¶ 8-11; CRDP §§ 16(b), 19(b), (d).

III. Issue

Whether CMS had a legitimate basis to establish January 30, 2017, as the effective date for the reassignment of Medicare benefits.

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IV. Findings of Fact, Conclusions of Law, and Analysis

My findings of fact and conclusions of law are set forth in italics and bold font.

The Social Security Act (Act) authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations governing the enrollment process for providers and suppliers. 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. 42 U.S.C. § 1395x(d); see also 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 terms "Enroll/Enrollment means the process that Medicare uses to establish eligibility to submit claims for Medicare‑covered items and services." 42 C.F.R. § 424.502. A supplier seeking billing privileges under the Medicare program must "submit enrollment information on the applicable enrollment application. Once the . . . supplier successfully completes the enrollment process . . . CMS enrolls the . . . 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 a 30-day retrospective billing period under 42 C.F.R. § 424.521(a)(1).

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. 42 U.S.C. § 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. 42 U.S.C. § 1395u(b)(6); 42 C.F.R. § 424.80(b)(1)-(2). CMS applies the effective date rules at 42 C.F.R. §§ 424.520(d) and 424.521(a)(1) to reassignments of Medicare benefits. See Medicare Program Integrity Manual (MPIM) §§ 15.5.20(E)(3), 15.17.

1. On January 30, 2017, the CMS administrative contractor received Petitioner's application to reassign Medicare benefits (CMS-855R), which the CMS administrative contractor approved.

Petitioner submitted a CMS‑855R reassignment of Medicare benefits application, which a CMS contractor received on January 30, 2017. CMS Ex. 5. The CMS contractor ultimately approved this application. CMS Ex. 4; P. Ex. 4.

2. Petitioner's reassignment of Medicare benefits to Epiphany is effective January 30, 2017, with a retrospective reassignment period effective December 31, 2016.

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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). Further, under the regulations, CMS may permit a 30‑day retroactive period of billing. 42 C.F.R. § 424.521(a)(1). CMS's published guidance for its contractors applies these effective date rules to reassignments of Medicare benefits. See MPIM §§ 15.5.20(E)(3), 15.17.

In the present case, the reassignment application that the CMS contractor was able to process to approval was the one received on January 30, 2017. The CMS contractor, in the reconsidered determination, then assigned a retroactive period of reassignment with an effective date of December 31, 2016. These actions are proper under 42 C.F.R. §§ 424.520(d) and 424.521(a)(1).

Petitioner's primary argument in this case is that the CMS contractor should not have rejected his first reassignment application because Petitioner responded to the request for additional information. However, as detailed above, the CMS contractor rejected the original reassignment application due to a lack of a second signature on the reassignment application. In any event, I have no authority to review the CMS contractor's rejection of Petitioner's original reassignment application and may only evaluate the effective date assigned based on the second reassignment application that the CMS contractor approved. 42 C.F.R. § 424.525(d).

V. Conclusion

I affirm the CMS contractor's reconsidered determination and conclude that Petitioner's effective date for reassignment of Medicare benefits to Epiphany is January 30, 2017, with a retrospective reassignment period effective date of December 31, 2016.