Mark McGinley, M.D., DAB CR5724 (2020)

DECISION

Petitioner, Mark McGinley, M.D., is a physician, specializing in pulmonary diseases, who practices in Colorado. Effective June 26, 2017, the Medicare contractor terminated the assignment of his billing privileges to one of his employers, SCL Health Medical Group. He subsequently submitted a new application, asking that the assignment be reinstated. The contractor approved the application, effective February 12, 2018, which resulted in a significant gap in reimbursement for Petitioner and SCL.

Petitioner concedes that he signed the June 26, 2017 termination request but maintains that doing so was a mistake. He did not review or understand what he was signing. He asks that I reinstate his original effective date of January 12, 2015, with no break in coverage. I do not have the authority to grant his request.

However, I also find that the February 12, 2018 effective date is incorrect. Because Petitioner filed his subsequently-approved enrollment application on January 29, 2018, January 29 is the correct effective date of his reassignment.

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Background

In a letter dated February 19, 2018, the Medicare contractor, Novitas Solutions, advised Petitioner McGinley that it approved his application to reassign Medicare benefits with an effective date of February 12, 2018. CMS Ex. 3 at 1-2. An amended notice, dated February 22, 2018, designates SCL Health Medical Group as the recipient of the reassignment. CMS Ex. 4. Petitioner sought reconsideration; he complained that the assignment to SCL was improperly terminated and asked that his original effective date of January 12, 2015, be reinstated, with no break in coverage. CMS Ex. 7.

In a reconsidered determination, dated June 18, 2018, a contractor hearing specialist denied Petitioner the earlier effective date, concluding that February 12 was the correct effective date. CMS Ex. 1.

Petitioner appealed.

CMS moves for summary judgment. However, an in-person hearing would serve no purpose. In my initial order, I directed the parties to list all proposed witnesses and to provide each witness’s written direct testimony in the form of an affidavit or written declaration. Acknowledgment and Pre hearing Order at 3, 5 (¶¶ 4(c)(iv), 8) (July 23, 2018). CMS listed no witnesses. Petitioner listed no witnesses. He submitted his own written statement, although it is not in the form of an affidavit or as a written declaration made under oath. P. Ex. 1. Nevertheless, CMS does not object to the document nor ask to cross-examine the witness. A hearing would therefore serve no purpose, and I may decide this case based on the written record, without considering whether the standards for summary judgment are met. See Pre-hearing Order at 6 (¶ 10) (“An 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.”).

With its motion and brief (CMS Br.), CMS submits 10 exhibits (CMS Exs. 1-10). With his brief (P. Br.), Petitioner submits five exhibits (P. Exs. 1-5). In the absence of any objections, I admit into evidence CMS Exs. 1-10 and P. Exs. 1-5.

Discussion

1. Because Petitioner filed his subsequently-approved enrollment application on January 29, 2018, that is the correct effective date for his reactivated Medicare enrollment. 42 C.F.R. § 424.520(d).1

Enrollment. Petitioner McGinley participates in the Medicare program as a “supplier” of services. Social Security Act § 1861(d); 42 C.F.R. § 498.2. To receive Medicare

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payments for the services furnished 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. For a physician, the effective date for billing privileges “is the later of – [t]he date of filing” a subsequently-approved enrollment application or “[t]he date that the supplier first began furnishing services at a new practice location.” 42 C.F.R. § 424.520(d) (emphasis added).

Terminating Petitioner’s assignment to SCL. The facts of this case are not in dispute. Petitioner participates in the Medicare program as a supplier of services. He is employed by SCL Health Medical Group, and, from January 12, 2015, through June 26, 2017, his Medicare billing privileges were assigned to that practice. P. Ex. 1; see CMS Ex. 9; P. Ex. 3. He subsequently started working with a second practice as well, Longmont Pulmonary and Critical Care. On June 26, 2017, a representative from Longmont submitted to the contractor an electronic application, asking to terminate the assignment of his billing privileges to SCL and to reassign them to Longmont. CMS Ex. 9; P. Ex. 3. Although he was apparently not aware of what he was signing, Petitioner concedes that he signed the application. P. Ex. 1. He continued providing services at SCL. P. Ex. 2.

In a letter dated July 18, 2017, the Medicare contractor advised Petitioner that his request to terminate the reassignment of benefits was approved. CMS Ex. 10. Although addressed to Petitioner, the letter was sent to Longmont, and neither Petitioner nor SCL was aware of the termination until the practice’s payment claims were rejected.

Petitioner is not entitled to an earlier effective date based on this erroneous termination. Notwithstanding the errors of others involved in the process, a physician is responsible for reviewing the contents of his application before he attests to its accuracy and, by his

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signature, affirms that he has done so. Sandra E. Johnson, CRNA, DAB No. 2708 at 14 (2016).

Petitioner’s new application. When he learned that his assignment to SCL had been terminated, Petitioner submitted, via PECOS, a new enrollment application (CMS 855R).3 CMS Ex. 2. As shown on the face of the document, the contractor received it on January 29, 2018. CMS Ex. 2 at 1. The contractor ultimately approved that application. CMS Br. at 2. Thus, pursuant to section 424.520(d), the date Petitioner filed his subsequently-approved enrollment application – January 29, 2018 – is the correct effective date of enrollment. See Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 (2019); Urology Grp. of NJ, LLC, DAB No. 2860 (2018); Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017), aff’d, Goffney v. Azar, No. CV 17-8032 MRW (C.D. Cal. Sept. 25, 2019).

CMS has not explained why a subsequently-approved application, filed on January 29, should be given a February 12 effective date, except to say that the “application was completed when the authorized signer signed it on February 12, 2018.” CMS Br. at 2. In fact, the Board has ruled otherwise.

CMS may reject an incomplete enrollment application if the prospective supplier “fails to furnish complete enrollment information on the . . . supplier enrollment application within 30 calendar days from the date of the contractor request for the missing information.” 42 C.F.R. § 424.525(a). However, so long as the contractor continues to process that application to a decision, the effective date will relate back to the date of its filing. Karthik Ramaswamy, M.D., DAB No. 2563 at 5 (2014) (en banc), aff’d, Ramaswamy v. Burwell, 83 F. Supp. 3d 846, 854 (E.D. Mo. 2015).

In Tri-Valley Family Medicine, Inc., the Board noted that, pursuant to 42 C.F.R. § 424.525(a), applicants are “given an opportunity to cure any deficiencies or supply any missing documentation before an application will be rejected.” DAB No. 2358 at 5 (2010).4 CMS may deny an enrollment application if the supplier does not comply with

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Medicare enrollment requirements, “which include the requirement for a signature on the certification statement,” and does not submit a corrective action plan. Tri-Valley, DAB No. 2358 at 5-6. Thus, where, as here, an application lacks necessary signatures, the regulations give the Medicare contractor two options: 1) treat the missing signature like any other missing information and request it within the regulatory deadline; or 2) treat the failure as noncompliance and deny the application. Tri-Valley, DAB No. 2358 at 6.

 

The Board explained that regulatory changes, effective January 1, 2009, added section 424.520(d), but did not change the regulations governing the contractor’s options for responding to a deficient enrollment application. The preamble to section 424.520 says that the “date of filing” is the date that a Medicare contractor receives a signed application that it is able to process to approval. 73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008). “This was the first indication that lack of a signature on an application might affect the timing of when a physician could get paid for covered services.” Tri-Valley, DAB No. 2358 at 6. The Board concluded that nothing in the regulations or the language of the preamble indicates that the effective date should be determined by the submission of a complete application:

Instead, the regulation refers to an application that is “subsequently approved” by the contractor. It does not require that the application be “approvable”’ as initially submitted. The regulatory process, which was unchanged, included provision for the contractor to request information or supporting documentation if an application was not complete. Thus, if the information or documentation was timely submitted and all other requirements were met, that application could be approved, and a provider or supplier was not required to submit an additional application. The preamble language . . . recognizes this by referring to an application that the contractor is able to process to approval. Indeed, the preamble indicated agreement with the comment that that the filing date should not be the date when the application is “deemed complete and ready for approval.”

Tri-Valley, DAB No. 2358 at 7, citing 73 Fed. Reg. at 69,769.

For reasons unrelated to this conclusion, Tri-Valley represented a bit of a departure. The case involved an earlier application that, in the Board’s view, “could have been processed to approval” had the contractor “properly requested” missing information. Tri-Valley, DAB No. 2358 at 1. Even though that earlier application was rejected (a determination that is not reviewable), and the Board was reviewing the effective date of a subsequent application, the review panel in Tri-Valley accepted, as the effective date, the filing date

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of the original application. Tri-Valley, DAB No. 2358 at 9. Since then, the Board has soundly rejected supplier requests for review of prior applications under the guise of challenging the effective dates of their subsequently-approved applications. Ramaswamy, DAB No. 2563 at 5.

 

We will not determine de novo that an application could have been processed to approval in the face of the contractor’s actual determination to deny the application because it was not approvable. To do so would improperly use the scope of review to revisit a legally binding and administratively final determination.

Ramaswamy, DAB No. 2563 at 9.

The Board nevertheless agreed with the Tri-Valley conclusion that “while the contractor may require and request additional information to complete the application, the effective date will relate back to the date of filing so long as that application continues to be processed to a decision on whether to approve it.” Ramaswamy, DAB No. 2563 at 5.

Conclusion

Because Petitioner filed his subsequently-approved enrollment application on January 29, 2018, his Medicare reassignment to SCL is effective as of that date.