Anil Hanuman, D.O., DAB CR6103 (2022)

DECISION

I affirm the determination of Noridian Healthcare Solutions (Noridian), a contractor for the Centers for Medicare & Medicaid Services (CMS), that the effective date for Petitioner's Medicare enrollment is August 11, 2021, with retrospective billing privileges commencing May 13, 2021.

I.  Procedural History

On February 2, 2022, Noridian issued an unfavorable reconsidered determination related to the effective date of Petitioner's Medicare enrollment and billing privileges.  Petitioner timely filed a request for hearing (RFH) to dispute the reconsidered determination.  On April 1, 2022, the Civil Remedies Division (CRD) acknowledged the RFH and issued my Standing Prehearing Order (SPO).  In response, CMS filed a brief, which included a motion for summary judgment, and eight proposed exhibits (CMS Exs. 1-8).  Petitioner did not file a brief or proposed exhibits.  Petitioner did not request an extension of time to file his prehearing exchange.

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II.  Admission of Evidence and Decision on the Written Record

In its notice acknowledging receipt of the RFH, the notice specified that CMS's prehearing exchange was due on May 6, 2022, and Petitioner's prehearing exchange was due on June 10, 2022.  DAB E-File Document No. 2.  These dates were consistent with my SPO.  SPO ¶ 7(a), (b).

In my SPO, I explained that a prehearing exchange should consist of the following:

1. A brief addressing all issues of law and fact, which may incorporate a motion to dismiss or motion for summary judgment;
2. A list of all proposed exhibits;
3. A copy of each proposed exhibit; and
4. A list of all proposed witnesses (if any).  Any written direct testimony must be submitted as a proposed exhibit.

SPO ¶ 7(d).

The SPO provided that the parties may request an extension of time to file a prehearing exchange; however, the parties must file that request no later than the deadline for which the extension was sought.  SPO ¶ 5.

The SPO specified that if Petitioner objected to any of CMS's proposed exhibits, Petitioner needed to submit a written objection at the same time he filed his prehearing exchange.  SPO ¶ 10; CRD Procedures § 14(e).  Further, the SPO stated that if parties wanted witnesses to testify in this case, the parties had to submit written direct testimony from the witnesses and that I would only hold a hearing if the opposing party requested to cross-examine one or more of those witnesses.  SPO ¶¶ 11-13; CRD Procedures §§ 16(b), 19(b).

Finally, the SPO indicated that:  "Unless a hearing is required for cross-examination of a witness or witnesses, the record will be closed and the case will be ready for a decision after all the deadlines have passed."  SPO ¶ 14; CRD Procedures § 19(d).

In the present case, the deadlines for prehearing exchanges have passed.  Because neither party offered any written direct testimony from witnesses, I do not need to hold a hearing and may issue a decision based on the written record.  Vandalia Park, DAB No. 1940 (2004).  Therefore, I deny CMS's summary judgment motion as moot.  Further, because Petitioner did not object to any of CMS's proposed exhibits, I admit all of them into the

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record.  In rendering this decision, I address the arguments that Petitioner raised in his RFH.

III.  Issue

Whether Noridian, acting on CMS's behalf, had a legitimate basis to assign August 11, 2021, as the effective date for Petitioner's Medicare enrollment, with a retrospective billing period commencing on May 13, 2021.

IV.  Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R §§ 498.3(b)(15), 498.5(l)(2); see also 42 U.S.C. § 1395cc(j)(8).

V.  Findings of Fact

1. Petitioner is a physician who was previously enrolled in the Medicare program.  See CMS Ex. 6 at 2.
2. On December 3, 2014, Noridian informed Petitioner that his Medicare billing privileges were deactivated because Petitioner did not respond to a request mailed in June 2014 to revalidate his enrollment.  Noridian informed Petitioner that he needed to file an enrollment application if he wanted to reactivate his billing privileges.  CMS Ex. 8 at 1.
3. On March 13, 2020, the president of the United States declared a national emergency due to the outbreak of COVID-19.  CMS Ex. 7.
4. In December 2020, Petitioner opened a private medical practice and started to see patients.  Although he learned that his Medicare billing privileges had "expired," he "continued to see patients while [his] Medicare ID application was delayed due to administrative changes and pandemic-related events."  CMS Ex. 6 at 2.
5. On August 11, 2021, Noridian received an electronically filed enrollment application from Petitioner.  Petitioner stated the following reason for the submission:  "A Medicare Part B practitioner is reactivating a deactivated Medicare billing number."  CMS Ex. 2 at 1.
6. On August 24, 2021, Noridian emailed Petitioner a list of additional information that he needed to provide in support of his enrollment application.  CMS Ex. 3 at 1.

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7. On September 1, 2021, Petitioner timely provided the additional information that Noridian requested.  CMS Ex. 4.
8. In a September 28, 2021 initial determination, Noridian informed Petitioner that his enrollment application was approved and that the effective date of his billing privileges was May 13, 2021.  CMS Ex. 5 at 1.
9. In November 2021, Petitioner requested that Noridian reconsider the effective date of Petitioner's Medicare billing privileges.  Petitioner explained that he provided care to patients while he was establishing his medical practice.  Petitioner indicated that there were administrative and pandemic-related delays to filing his enrollment application.  Petitioner requested an effective date of December 1, 2020, because that is when he established his medical practice.  CMS Ex. 6 at 2.
10. On February 2, 2022, Noridian issued an unfavorable reconsidered determination in which Noridian concluded that the effective date of Petitioner's billing privileges was August 11, 2021, because that was the date Noridian received the enrollment application.  Further, due to the declaration of a public health emergency, Noridian was able to provide retrospective billing privileges back 90 days; therefore, a retrospective billing date of May 13, 2021, was the earliest possible retrospective billing date that Noridian could provide.  CMS Ex. 1 at 2.

VI.  Conclusions of Law

1. Based on the enrollment application that Noridian approved in this case, the effective date for Medicare enrollment is the date the approved application was received by Noridian (i.e., August 11, 2021).  42 C.F.R. § 424.520(d).
2. Based on the declaration of a national emergency, Noridian provided Petitioner with the maximum retrospective billing privileges permissible under law (i.e., 90 days back to May 13, 2021).  42 C.F.R. § 424.521(a)(1)(ii).

VII.  Analysis

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 term "Enroll/Enrollment means the process

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that Medicare uses to establish eligibility to submit claims for Medicare-covered items and services, and the process that Medicare uses to establish eligibility to order or certify Medicare-covered items and services.  The process includes . . . [i]dentification and confirmation of the . . . supplier's practice location(s) and owner(s)."  42 C.F.R. § 424.502.  A supplier seeking Medicare billing privileges 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)(1).

When enrolling a physician, CMS establishes an effective date for billing privileges.  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" an 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).

When CMS assigns an effective date, CMS may permit a retrospective billing period of up to 30 days in normal circumstances and up to 90 days if a presidentially declared disaster precluded enrollment in advance of providing services to Medicare beneficiaries.  42 C.F.R. § 424.521.

In the present case, there is no dispute that Noridian received Petitioner's enrollment application on August 11, 2021, which Noridian subsequently approved.  Therefore, Noridian properly established August 11, 2021, as the effective date for Petitioner's Medicare enrollment.  Further, Noridian properly exercised its authority to permit a 90-day retrospective billing period starting on May 13, 2021, based on the emergency declaration caused by the COVID-19 pandemic.

Petitioner argues that he should receive a December 4, 2020 retrospective billing date because he started to provide services to Medicare beneficiaries as of that date and because of the exigencies related to the COVID-19 pandemic.  RFH at 1.  However, as stated above, the effective date of enrollment is determined by either the date of filing of an enrollment application that is processed to approval or the date on which the physician starts to provide services, whichever is later in time.  42 C.F.R. § 424.520(d).  In the present case, there is no doubt that the date of filing of the enrollment application (August 11, 2021) is later than the date on which Petitioner commenced providing services (December 4, 2020).  Therefore, August 11, 2021, is the correct effective date for enrollment.

Petitioner's argument also included a request that the retrospective billing period be extended to December 4, 2020, due to the COVID-19 pandemic.  However, as discussed

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above, the regulation already provides for an extended retrospective billing period when there is a presidentially declared disaster.  Noridian provided the full relief that the regulations permit for the COVID-19 pandemic when it provided a retrospective billing period commencing May 13, 2021.

I am sympathetic to Petitioner's inability to receive Medicare reimbursement for months of services provided to Medicare beneficiaries.  Certainly, the COVID-19 pandemic has caused health care providers to exert themselves significantly to help their patients.  However, neither Noridian nor I have the authority to provide Petitioner with the effective date for billing privileges that Petitioner requests.

VIII.  Conclusion

The effective date for Petitioner's Medicare enrollment is August 11, 2021.  The effective date for the retrospective billing period is May 13, 2021.