Dardanelle Regional, LLC, DAB CR6548 (2024)

DECISION

The effective date of enrollment and billing privileges of Petitioner, Dardanelle Regional, LLC, is May 30, 2023, with retrospective billing privileges authorized effective April 30, 2023.

I. Background and Procedural History

Petitioner is enrolled as a clinic/group practice in the Medicare program.  See Centers for Medicare & Medicaid Services (CMS) Ex. 18 at 1.

On March 15, 2022, Petitioner submitted an internet-based enrollment application that, on its face, updated the enrollment record of “Dardanelle Hospital Yell County.”  CMS Ex. 5 at 1 (listing entity name of Dardanelle Hospital Yell County, and stating that the reason for submission was that the supplier “is adding, deleting, or changing general Medicare enrollment information”).  As later explained by Petitioner, it had intended to report a change in ownership through its submission of this application.  CMS Ex. 19.  Petitioner reported that in response to the application, on an unspecified date prior to the approval of the enrollment application on March 29, 2022, Novitas Solutions (Novitas), a Medicare administrative contractor, requested that Petitioner submit a paper application

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because the internet-based application did not have the capability to allow for a change to the business name or tax identification number.  P. Ex. 19 at 2.  On March 29, 2022, Novitas reported that it had “approved [the] Change of Information (COI) application” for Dardanelle Hospital Yell County, to include that it did business as Dardanelle Regional Medical Clinic.  CMS Ex. 7 at 1.  Novitas reported the “[c]hanged [i]nformation” included the following:  “Ownership interest & managing control info (organizations), contact person, CMS-588 Electronic Funds Transfer (EFT) agreement.”  CMS Ex. 7 at 1 (capitalization omitted).

Approximately 10 months later, on February 2, 2023, Petitioner’s counsel submitted a hard copy Form CMS-855A enrollment application and reported that the application had been submitted “for the purpose of correcting the legal business name and tax id [sic].”  CMS Ex. 1 at 4.  On February 15, 2023, Novitas requested that Petitioner submit a Form CMS-855B enrollment application.  CMS Ex. 2 at 1.  Petitioner complied with the request on March 2, 2023.  CMS Ex. 3 at 4-20.  The following day, on March 3, 2023, Novitas sent Petitioner a development request that it, inter alia, submit Form CMS-855R(s) for group members and Form CMS-855I(s) for physician assistants joining the group.  CMS Ex. 4.  At that time, Novitas, citing 42 C.F.R. § 424.525, informed Petitioner that it may reject the application if Petitioner did not furnish complete information within 30 calendar days.  CMS Ex. 4 at 1.  Petitioner submitted a response to the request on March 22, 2023.  CMS Ex. 6.  On April 2, 2023, Novitas informed Petitioner that it had rejected the February 2, 2023 enrollment application.  CMS Ex. 8 at 1.  Novitas explained that Petitioner “failed to submit complete CMS-855R(s) for group members or CMS-855I(s) for physician assistants joining this group,” stating, “They are all missing from Section 1 and 2 of the CMS-855R application.”  CMS Ex. 8 at 1.

On April 4, 2023, Petitioner submitted a new enrollment application.  CMS Ex. 9.  After Petitioner did not comply with an April 20, 2023 development request that again informed Petitioner that the application may be rejected if it failed to furnish complete information within 30 days (CMS Ex. 10 at 1), Novitas rejected the application on May 22, 2023.  CMS Ex. 11.

On May 30, 2023, Petitioner submitted a new enrollment application.  CMS Ex. 12.  After Petitioner complied with June 27 and July 5, 2023 development requests (CMS Exs. 14 at 1; 16 at 1), Novitas approved the May 30, 2023 enrollment application on July 11, 2023, effective April 30, 2023.1  CMS Ex. 18 at 1.

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Petitioner, through counsel, submitted a request for reconsideration dated August 3, 2023.  CMS Ex. 19.  Petitioner contended that “the deficiencies outlined in the April 2, 2023 rejection [of its February 3, 2023 application] could have easily been repaired and the information provided was clear on which entity the provider was reassigning benefits.”  CMS Ex. 19 at 3.

On October 17, 2023, Novitas issued a reconsidered determination in which it explained the following:

On the CMS-855B Medicare application received May 30, 2023, the requested effective date was listed as January 1, 2022.  Per 42 C.F.R. 
§ 424.520(d), the effective date of billing privileges is the later of (1) the date of a filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or (2) the date that the supplier first began furnishing services at a new practice location.  Regulations found in 42 C.F.R. § 424.521(a) provide that physicians and non-physician practitioners may retrospectively bill for services when they have met all program requirements, including State Licensure requirements, and services were provided at the enrolled practice location for up to (1) 30 days prior to their effective date if circumstances precluded enrollment in advance of providing services to Medicare beneficiaries, or (2) 90 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.  Novitas Solutions determined that Dardanelle Regional LLC qualified for retrospective billing privileges up to 30 days.  Due to the public health emergency ending on May 11, 2023, Novitas Solutions is unable to grant retrospective billing privileges up to 90 days.  Additionally, the prior applications cannot be used in determining the effective date since they were not the enrollment applications filed and subsequently approved.  Therefore, a retrospective effective date of billing of April 30, 2023 was established correctly.

CMS Ex. 20 at 4.

Petitioner, through counsel, filed a request for hearing on November 9, 2023.  The Civil Remedies Division issued my standing pre-hearing order (Pre-Hearing Order) on November 14, 2023.  CMS filed a motion for summary judgment (CMS Br.), along with

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20 proposed exhibits (CMS Exs. 1-20).  Petitioner filed a response to CMS’s motion for summary judgment, along with 20 exhibits (P. Exs. 1-20).  In the absence of any objections to the proposed exhibits, I admit CMS Exs. 1-20 and P. Exs. 1-20 into the evidentiary record.  CMS Exs. 1-20 and P. Exs. 1-20 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.2

II. Issue

Whether the effective date of Petitioner’s enrollment and billing privileges is May 30, 2023, with retrospective billing privileges authorized beginning April 30, 2023.

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).

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IV. Findings of Fact, Conclusions of Law, and Analysis3

1. On March 15, 2022, Novitas received an internet-based enrollment application that updated the enrollment record of Dardanelle Hospital Yell County.
2. On March 29, 2022, Novitas approved the changes to the enrollment record of Dardanelle Hospital Yell County, explaining that it had updated the entity’s ownership interest and managing control, contact person, and EFT agreement.
3. Petitioner acknowledged that to the extent the March 15, 2022 application did not report changes to the legal business name and tax identification number, it had been informed at some point prior to March 29, 2022, that it would need to submit a hard copy application to report that information.
4. On February 2, 2023, Petitioner submitted a hard copy enrollment application in which it reported a legal business name of Dardanelle Regional, LLC, and a new tax identification number.  After Petitioner did not timely comply with development requests, Novitas rejected the application on April 2, 2023.
5. Petitioner submitted a new enrollment application on April 4, 2023.  After Petitioner did not comply with an April 20, 2023 development request, Novitas again rejected the application on May 22, 2023.
6. Petitioner submitted a new enrollment application on May 30, 2023.  After complying with June 27 and July 5, 2023 development requests, Novitas approved the enrollment application on July 11, 2023, effective “April 30, 2023.”
7. Pursuant to 42 C.F.R. § 424.525(d), the rejection of an enrollment application is not reviewable by an ALJ.
8. Pursuant to 42 C.F.R. § 424.520(d)(1)(i), the effective date of Petitioner’s Medicare enrollment and billing privileges is May 30,

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8. 2023, which is the date of receipt of the Medicare enrollment application that Novitas was able to process to approval.
9. Pursuant to 42 C.F.R. § 424.521(a)(1)(i), retrospective billing privileges are authorized beginning April 30, 2023.

Petitioner is a “supplier” for purposes of the Medicare program.  See 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 services under Medicare and the term applies to physicians or other practitioners who 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 for suppliers).

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 6 (2017), aff’d, Goffney v. Azar, No. CV 17-8032 MRW (C.D. Cal. Sept. 25, 2019).

Petitioner does not claim that, prior to May 30, 2023, it had submitted an enrollment application that reported its legal business name and taxpayer identification number that was processed to approval.  Because there is no evidence that Petitioner submitted an enrollment application reporting it operated under its legal business name and taxpayer identification number, prior to May 30, 2023, that could be processed to approval, Novitas correctly assigned Petitioner a May 30, 2023 effective date of enrollment and billing privileges, with retrospective billing privileges authorized beginning April 30, 2023.  See CMS Ex. 12; 42 C.F.R. §§ 424.520(d)(1)(i), 424.521(a)(1)(i).

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Petitioner argues that the March 15, 2022 application listing Dardanelle Hospital Yell County as the business name “was processed as a change of information due to the system limitations and defective due only to the system limitations,” and therefore, “the enrollment effective date should be January 1, 2022.”  P. Br. at 6.  Petitioner argues this application was, in fact, a change of ownership application and not simply an application to update its enrollment record.  P. Br. at 1, 5.  However, the application, on its face, reported that Dardanelle Hospital of Yell County “is adding, deleting, or changing general Medicare enrollment information.”  CMS Ex. 5 at 1.  The application listed Dardanelle Hospital of Yell County, and not Petitioner, as the business entity, and listed that entity’s taxpayer identification number.  CMS Ex. 5 at 1.  To the extent the electronic submission process had a limitation that prevented Petitioner from electronically reporting complete change of ownership information, Petitioner conceded that it was aware of this limitation and had been informed, prior to March 29, 2022, that it needed to submit a hard copy application to update that information.  P. Ex. 19 at 2.  And even though Novitas approved a “Change of Information (COI) application” for an entity with a legal business name of Dardanelle Hospital Yell County, Petitioner did not submit the requested hard copy application reporting its correct legal business name and taxpayer identification number until February 2023, at which time it was rejected based on a failure to comply with a development request.  CMS Exs. 1, 6, 8.

Further, although Petitioner submitted subsequent enrollment applications in April and May of 2023, Novitas rejected the applications based on Petitioner’s failure to provide the requested development.  CMS Exs. 8, 11; see 42 C.F.R. § 424.525(d) (stating that appeal rights are not afforded for rejected enrollment applications).  With each rejection, Novitas plainly explained that “[i]f you would like to resubmit an application, you must complete a new Medicare enrollment application(s).”  CMS Exs. 8 at 1; 11 at 1.  Petitioner’s May 30, 2023 application was a new Medicare application that was ultimately processed to approval.  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.”); see also CMS Exs. 8 at 1; 11 at 1.

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.  See 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

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invalidate either a law or regulation on any ground . . . .”).  Novitas did not receive an application with the correct legal business name and taxpayer identification number that it could process to approval until May 30, 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 May 30, 2023, with retrospective billing privileges authorized beginning April 30, 2023.  42 C.F.R. § 424.521(a)(1)(i).

V. Conclusion

For the foregoing reasons, I uphold the May 30, 2023 effective date of Petitioner’s enrollment and billing privileges, with retrospective billing privileges authorized beginning April 30, 2023.