Honolulu EMS, DAB CR6546 (2024)

DECISION

The effective date of enrollment and billing privileges of Petitioner, Honolulu EMS, is April 14, 2023, with retrospective billing privileges authorized effective January 14, 2023.

I.      Background and Procedural History

Petitioner is a supplier of ambulance services.  See Centers for Medicare & Medicaid Services (CMS) Ex. 1 at 1.

On December 23, 2022, Petitioner submitted an internet-based enrollment application to enroll in the Medicare program.  CMS Ex. 1.  On February 7, 2023, Noridian Healthcare Solutions (Noridian), a Medicare administrative contractor, rejected the application after Petitioner did not provide all requested information in response to a January 6, 2023 development request.  CMS Ex. 4; see CMS Ex. 2.

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Petitioner submitted another enrollment application on February 7, 2023.  See CMS Ex. 5 at 1 (referencing February 7, 2023 application).  After Petitioner did not provide all requested information in response to a February 21, 2023 development request, Noridian rejected the February 7, 2023 application on March 27, 2023.  CMS Ex. 5; see CMS Ex. 3.

On April 14, 2023, Petitioner submitted a new enrollment application.  CMS Ex. 6.  After Petitioner complied with an April 20, 2023 development request, Noridian approved Petitioner’s application on July 3, 2023, effective April 14, 2023, with retrospective billing privileges authorized beginning January 14, 2023.  CMS Ex. 8; see CMS Ex. 7.

In a request for reconsideration dated August 24, 2023, Petitioner requested a July 1, 2022 effective date of its enrollment.  CMS Ex. 9.  In addition to citing a substantial loss of more than $1.6 million in reimbursements, Petitioner claimed that representatives of Noridian informed it that the effective date of its enrollment would be July 1, 2022, which Petitioner explained was “the beginning of transportation services for this provider.”  CMS Ex. 9 at 1.

On September 20, 2023, CMS’s Provider Enrollment & Oversight Group issued a reconsidered determination in which it explained the following:

In its reconsideration request, [Petitioner] states that it initially submitted its Medicare enrollment application in December 2022, with a requested effective date of July 1, 2022, which coincides with the date it began providing services.  [Petitioner] claims that throughout the Medicare enrollment process, it was repeatedly told that July 1, 2022 would be honored as its Medicare enrollment effective date.  [Petitioner] attests that it has a total of 2,321 claims dating back to July 1, 2022.  [Petitioner] contends that if its effective date is not backdated to July 1, 2022, it will lose, at minimum, in excess of $1.65 million.  [Petitioner] contends that a lack of communication from Noridian caused its effective date to be improper.  [Petitioner] asserts that it has repeatedly followed up with Noridian to ensure that all required information was received.  With its reconsideration request, [Petitioner] submitted a chart illustrating the volume of claims, charges, and potential revenue from Medicare, as well as a timeline of events.  [Petitioner] argues that due to a lack of communication, the processing time for its claims has gone on for over seven months and has the potential to greatly impact revenue and other outstanding enrollments.  Therefore, [Petitioner] respectfully requests CMS to backdate its effective date to July 1, 2022 . . . .

Under § 424.520(d), the effective date for billing privileges for ambulance suppliers is the later of:

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(i) The date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or
(ii) The date that the provider or supplier first began furnishing services at a new practice location.

Consistent with § 424.520(d), there are two dates on which [Petitioner’s] Medicare enrollment effective date may be based:  July 1, 2022, the date on which [Petitioner] began furnishing services as an Ambulance Service Supplier; or April 14, 2023, the date on which [Petitioner] submitted its CMS-855B Medicare enrollment application that was ultimately processed to completion.  Since April 14, 2023 is the later of the two dates, this is the appropriate effective date for [Petitioner’s] Medicare enrollment.

Under § 424.521(a), suppliers identified in § 424.521(a)(2) may retrospectively bill for services when the supplier has met all program requirements (including State licensure requirements), and services were provided at the enrolled practice location for up to (ii) ninety days prior to their effective date if a Presidentially-declared disaster under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121–5206 (Stafford Act) precluded enrollment in advance of providing services to Medicare beneficiaries. . . .

In this case, [Petitioner] submitted its Medicare enrollment application on April 14, 2023 during the Presidentially declared disaster under the Stafford Act, for Coronavirus Disease 2019 (COVID-19).  Since [Petitioner] is enrolling in the Medicare program as an ambulance supplier, pursuant to § 424.521(a)(1)(ii), Noridian granted [Petitioner] retrospective billing, effective January 14, 2023, 90 days prior to its April 14, 2023, submitted, completed, and processed application.  Therefore, April 14, 2023 is the earliest effective date for [Petitioner’s] Medicare enrollment in accordance with § 424.520(d) and January 14, 2023 is the earliest retrospective billing date permissible under § 424.521(a).  Although [Petitioner] requests CMS to change its Medicare enrollment effective date to July 1, 2022 to avoid a loss of revenue, CMS is unable to grant [Petitioner’s] request to backdate its Medicare enrollment to July 1, 2022.  Further, [Petitioner] makes several arguments to the extent that miscommunication with Noridian led to delays with the approval of its Medicare enrollment.  However, CMS finds that [Petitioner’s] initial December 23, 2022 Medicare enrollment application was properly rejected pursuant to § 424.525 because [Petitioner] failed to submit all requested documentation. . . .  As a result, CMS upholds the effective date and retrospective billing date of [Petitioner’s] Medicare enrollment pursuant to § 424.520(d) and § 424.521(a)(1)(ii), as established in the July 3, 2023 approval letter.

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CMS Ex. 10 at 3-4.

Petitioner, through its billing company as its representative, filed a request for hearing on November 13, 2023.  The Civil Remedies Division issued my standing pre-hearing order (Pre-Hearing Order) on November 15, 2023.  CMS filed a combined brief and motion for summary judgment (CMS Br.), along with 11 proposed exhibits (CMS Exs. 1-11).  Petitioner filed a brief in response to CMS’s motion for summary judgment, along with six proposed exhibits (P. Exs. 1-6).  In the absence of any objections to the proposed exhibits, I admit CMS Exs. 1-11 and P. Exs. 1-6 into the evidentiary record.  CMS Exs. 1-11 and P. Exs. 1-6 constitute the full evidentiary record that is the basis for this decision.  See Civil Remedies Division Procedures § 14(a) (“Documents that are intended to prove facts as alleged by a party must be offered as exhibits.”); Pre-Hearing Order § 8 (“If an argument relies upon a particular exhibit, the party must provide a pinpoint citation to the exhibit and page number in its brief,” and “[e]vidence submitted should be relevant and support a party’s arguments and it will be unnecessary to consider evidence that is neither cited by a party in its brief or by any witnesses.”).

Because the parties have not submitted the written direct testimony of any witnesses, a hearing is unnecessary for purposes of cross-examination.  Pre-Hearing Order §§ 12-14 (directing the parties to submit the written direct testimony of proposed witnesses, and explaining that an in-person hearing will be held only if a party submits a request to cross-examine a witness for whom written direct testimony has been submitted).  See Jeffrey K. McIlroy, MD, Inc., DAB No. 3143 at 19 (2024) (citing George Yaplee Med. Ctr., DAB No. 3003 at 5 (2020)) (“Where no witness testimony is proffered, or all witness testimony is submitted in writing and no cross-examination is sought, there is no need to convene an in-person hearing.”).  

I consider the record in this case to be closed, and the matter is ready for a decision on the merits.¹

II.     Issue

Whether the effective date of Petitioner’s Medicare billing privileges is April 14, 2023, with retrospective billing privileges authorized beginning January 14, 2023.

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III.    Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R § 498.3(b)(15); Victor Alvarez, M.D., DAB No. 2325 at 8-12 (2010); see also 42 U.S.C. § 1395cc(j)(8).

IV.    Findings of Fact, Conclusions of Law, and Analysis²

1. On December 23, 2022, Noridian received Petitioner’s internet-based application to enroll in the Medicare program.
2. After Petitioner did not provide all information requested in a January 6, 2023 development request, Noridian rejected the application on February 7, 2023.
3. After Petitioner did not provide all information requested in a February 21, 2023 development request, on March 27, 2023, Noridian rejected a subsequent application submitted on February 7, 2023.
4. Petitioner submitted a new enrollment application on April 14, 2023. After Petitioner complied with an April 20, 2023 development request, Noridian approved Petitioner’s application on July 3, 2023, effective April 14, 2023, with retrospective billing privileges authorized beginning January 14, 2023.  
5. Pursuant to 42 C.F.R. § 424.525(d), the rejection of an enrollment application is not reviewable by an administrative law judge (ALJ).
6. Pursuant to 42 C.F.R. § 424.520(d)(1)(i), the effective date of Petitioner’s billing privileges is April 14, 2023, which is the date of receipt of the Medicare enrollment application that Noridian was able to process to approval.
7. Pursuant to 42 C.F.R. § 424.521(a)(1)(ii), retrospective billing privileges are authorized beginning January 14, 2023.

As an ambulance service supplier, Petitioner is a “supplier” for purposes of the Medicare program.  See CMS Ex. 1 at 1; see also 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202 (definition of supplier), 498.2 (definition of supplier).  A “supplier” furnishes items or

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services under Medicare, and the term applies to physicians or other practitioners that are not included within the definition of the phrase “provider of services.”  42 U.S.C. § 1395x(d).  A supplier must enroll in the Medicare program to receive payment for covered Medicare items or services.  42 C.F.R. § 424.505.  The regulations at 42 C.F.R. Part 424, subpart P, establish the requirements for a supplier to enroll in the Medicare program.  42 C.F.R. §§ 424.510-424.516; see also 42 U.S.C. § 1395cc(j)(1)(A) (authorizing the Secretary of the U.S. Department of Health and Human Services to establish regulations addressing the enrollment of providers and suppliers in the Medicare program).  A supplier that seeks billing privileges under Medicare “must submit enrollment information on the applicable enrollment application.”  42 C.F.R. § 424.510(a)(1).  “Once the provider or supplier successfully completes the enrollment process . . . CMS enrolls the provider or supplier into the Medicare program.”  42 C.F.R. § 424.510(a)(1); see also 42 C.F.R. § 424.510(d) (listing enrollment requirements).

When the contractor approves an enrollment application, it sets the effective date for approval of billing privileges.  Alexander C. Gatzimos, MD, JD, LLC, DAB No. 2730 at 2 (2016); see 42 C.F.R. § 424.520(d)(1) (“The effective date of billing privileges . . . is the later of . . . the date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor [or] . . . [t]he date the provider or supplier first began furnishing services at a new practice location.”).  The Departmental Appeals Board has explained that “[t]he governing law on how CMS (and its Medicare contractors) determine the effective date for [suppliers] applying for Medicare billing privileges is set by regulation . . .” at 42 C.F.R. § 424.520(d).  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).  Petitioner does not claim that, prior to April 14, 2023, it had submitted an enrollment application that Noridian had processed to approval.  Because there is no evidence that Petitioner submitted an enrollment application that could be processed to approval prior to April 14, 2023, Noridian correctly assigned Petitioner an April 14, 2023 effective date of billing privileges, with retrospective billing authorized beginning January 14, 2023.  See CMS Ex. 6; see 42 C.F.R. §§ 424.520(d)(1)(i); 424.521(a)(1)(ii) (allowing a 90-day period of retroactive billing during the timeframe of the COVID-19 pandemic).

Petitioner has not argued, nor does the evidence suggest, that it submitted the enrollment application that was processed to approval prior to April 14, 2023.  Pursuant to 42 C.F.R. § 424.520(d)(1)(i), the earliest possible effective date of billing privileges for Petitioner is April 14, 2023, the date Noridian received the enrollment application that could be processed to approval, with billing privileges authorized 90 days earlier pursuant to 42 C.F.R. § 424.521(a)(1)(ii).

Petitioner argues that Noridian should not have rejected the application it submitted on December 23, 2022.  However, 42 C.F.R. § 424.525(d) explicitly states that “[e]nrollment applications that are rejected are not afforded appeal rights.”  Further, a rejected application is not an initial determination that is subject to review pursuant to

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42 C.F.R. § 498.3.³  To the extent Petitioner disagrees with how Noridian processed its enrollment applications and responses to development requests, to include the handling of this matter by specific Noridian personnel, I reiterate that I cannot review a rejected application.  42 C.F.R. § 424.525(d).  Neither can I approve an effective date of billing privileges that is contrary to law.

Because Noridian had rejected Petitioner’s December 23, 2022 application on February 7, 2023, and also rejected Petitioner’s February 7, 2023 application on March 27, 2023, the April 14, 2023 application was the only application that Noridian ultimately processed to approval.  See 42 C.F.R. § 424.525(c) (entitled, “Resubmission after rejection,” stating:  “To enroll in Medicare and obtain Medicare billing privileges after notification of a rejected enrollment application, the provider or supplier must complete and submit a new enrollment application and submit all supporting documentation for CMS review and approval.”); CMS Exs. 4, 5, 6.  Therefore, the effective date of enrollment is based on the submission date of the April 14, 2023 application.  See 42 C.F.R. § 424.520(d)(1)(i).

I am not empowered with the discretion to grant an effective date of billing privileges earlier than the date Petitioner submitted the enrollment application that was processed to approval.  42 C.F.R. § 424.520(d)(1)(i).  To the extent that Petitioner’s request for relief is based on principles of equitable relief, I cannot grant such relief.  US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the [DAB] is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).  Petitioner points to no authority by which I may grant it relief from the applicable regulatory requirements, and I have no authority to declare statutes or regulations invalid or ultra vires.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (“An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground . . . .”).  Noridian did not receive an application that it could process to approval until April 14, 2023; therefore, the pertinent regulation, 42 C.F.R. § 424.520(d)(1)(i), mandates that the effective date of Petitioner’s billing privileges is April 14, 2023, with billing privileges authorized 90 days earlier beginning on January 14, 2023.  42 C.F.R. § 424.521(a)(1)(ii).

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V.     Conclusion

For the foregoing reasons, I uphold the April 14, 2023 effective date of Petitioner’s enrollment and billing privileges, with retrospective billing privileges authorized beginning January 14, 2023.

Endnotes

¹  Because a hearing is unnecessary, I need not rule on CMS’s motion for summary judgment.

²  Findings of fact and conclusions of law are in italics and bold font.

³  I note that Petitioner conceded that “Noridian rejected the application request due to the bank account number on the PECOS application not matching the account number on the additionally requested bank letters,” and that it “agrees that these bank letters provided on February 2, 2023, and February 21, 2023 included an incorrect account number.”  P. Br. at 2.  Regardless, as previously stated, I cannot review Noridian’s rejection of an enrollment application.  42 C.F.R. § 424.525(d).