Allen Tennison, CRNA, DAB CR5760 (2020)

DECISION

Petitioner, Allen Tennison, CRNA, is a certified registered nurse anesthetist, practicing in Texas, who participates in the Medicare program as a supplier of services.  He applied to reassign his billing privileges to a new practice, Eye Surgery Center of East Texas, PLLC.  The Centers for Medicare & Medicaid Services (CMS) granted his application with a retrospective billing date of February 16, 2018 (and an effective date of May 17, 2018).  Petitioner now challenges that effective date. 

Because Petitioner filed his subsequently-approved enrollment application on May 17, 2018, I find that May 17 is the correct effective date of his enrollment.  CMS has granted him a 90-day retrospective billing date, February 16, 2018.

Background

In a letter dated June 18, 2018, the Medicare contractor, Novitas Solutions, advised Petitioner Tennison that it approved his reassignment of benefits request with an “effective date” of February 16, 2018.  CMS Ex. 6.  In fact, the contractor was granting Petitioner a retrospective billing date of February 16, 2018; based on this determination, the effective date of Petitioner’s enrollment is May 17, 2018 (see discussion below).   

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Petitioner sought reconsideration, explaining that he was late in filing his application because of “uncertainty and complications of the billing process for [his] services.”  He asked that the effective date of his enrollment be changed to January 18, 2018, the day he began providing services at his new facility.  CMS Ex. 4. 

In a reconsidered determination, dated September 14, 2018, a contractor hearing specialist determined that May 17, 2018, was the correct effective date.  The hearing specialist also determined that Petitioner was entitled to a retrospective billing date, based on a presidentially-declared disaster for the State of Texas.  She granted Petitioner the maximum retrospective billing days allowed by the regulations – 90 days – giving Petitioner a retrospective billing date of February 16, 2018.  CMS Ex. 1.

Petitioner appealed. 

CMS moves for summary judgment.  However, because neither party proposes any witnesses, an in-person hearing would serve no purpose.  See Acknowledgment and Prehearing Order at 3, 5 (¶¶ 4(c)(iv), 8, 10) (November 21, 2018).  I may therefore decide this case based on the written record, without considering whether the standards for summary judgment are satisfied.

With its motion and brief (CMS Br.), CMS submits six exhibits (CMS Exs. 1-6).  Petitioner submits a written response (P. Br.).  In the absence of any objections, I admit into evidence CMS Exs. 1-6. 

Discussion

1. On May 17, 2018, Petitioner filed his subsequently-approved application to reassign his billing privileges, and his effective date can be no earlier than that date.  42 C.F.R. § 424.520(d).1

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

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

If a non-physician practitioner meets all program requirements, CMS may allow him to bill retrospectively for up to 90 days prior to the effective date “if a Presidentially-declared disaster under the Robert T. Stafford Act . . . precluded enrollment in advance of providing services to Medicare beneficiaries.”  42 C.F.R. § 424.521(a)(2). 

Some Medicare contractors have created confusion because they are inclined to conflate the effective date with the retrospective billing date, as the contractor initially did in this case.  CMS Ex. 6.  On reconsideration, the hearing specialist corrected the error.  CMS Ex. 1 at 3.  The distinction is important; I have the authority to review “the effective date of . . . supplier approval.”  42 C.F.R. § 498.3(b)(15).  But nothing in the regulations gives me the authority to review CMS’s determinations regarding retrospective billing. 

Effective filing date.  Here, on May 17, 2018, Petitioner filed, via the PECOS system, his Medicare enrollment application (CMS-855R), which the contractor subsequently approved.  CMS Ex. 3 at 1.3  Thus, pursuant to section 424.520(d), the date Petitioner filed his subsequently-approved enrollment application – May 17, 2018 – is the correct effective date of enrollment.  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 sub. nom. Goffney v. Azar, No. CV 17-8032 MRW (C.D. Cal. Sept. 25, 2019).  Pursuant to its authority under section 424.521(a)(2), CMS has allowed Petitioner to bill 90-days retrospectively, so his retrospective billing date is February 16, 2018.

I may not, however, grant Petitioner an earlier effective date based on any equitable or policy arguments.  Sokoloff, DAB No. 2972 at 9.

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Conclusion

Because Petitioner filed his subsequently-approved enrollment application on May 17, 2018, May 17 is his effective date of enrollment.