Cody Cobb, M.D., DAB CR6566 (2024)

DECISION

I affirm the determination of the Centers for Medicare & Medicaid Services (CMS) that the effective date of enrollment in the Medicare program for Petitioner, Cody Cobb, M.D., is December 5, 2023, with a retrospective billing period starting November 5, 2023. I also conclude that the effective date for Petitioner’s reassignment of Medicare benefits to Kidney Specialists of North Houston PLLC (Kidney Specialists) is November 5, 2023.

I. Background and Procedural History

On May 14, 2024, Petitioner requested a hearing before an administrative law judge seeking an earlier effective date for his enrollment in the Medicare program as a physician and for the reassignment of his Medicare benefits to Kidney Specialists.

On May 15, 2024, the Civil Remedies Division acknowledged receipt of the hearing request and issued my Standing Order. On June 20, 2024, CMS filed a brief/motion for summary judgment (CMS Br.) and 10 proposed exhibits. Petitioner did not file a prehearing exchange.

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II. Admission of Evidence

I admit CMS’s proposed exhibits without objection. See Standing Order ¶ 10.

III. Decision on the Written Record

I directed the parties to submit the written direct testimony of any witnesses they wanted to offer. Standing Order ¶ 11. I also informed the parties as follows:

If the parties either do not file any written direct testimony or the parties do not request to cross-examine any of the witnesses from whom written direct testimony has been submitted, I will consider such actions by the parties to serve as a constructive request for a decision on the written record because there will be no reason to hold an in-person hearing.

Standing Order ¶ 7(g)(iii). I further advised: “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 submission deadlines have passed.” Standing Order ¶ 14.

Neither party submitted written direct testimony from any witnesses and all submission deadlines have passed. Therefore, I decide this case based on the written record. Anil Hanuman, D.O., DAB No. 3080 at 11-12 (2022); Civil Remedies Division Procedures § 19(d).

IV. Issue

Whether December 5, 2023, is the correct effective date for Petitioner’s enrollment in the Medicare program and the reassignment of his Medicare benefits to Kidney Specialists.

V. Jurisdiction

I have jurisdiction to decide the issue in this case. 42 C.F.R. § 498.3(b)(15).

VI. Findings of Fact

1. On August 29, 2023, CMS received from Petitioner applications for enrollment in the Medicare program as a physician and the reassignment of Medicare benefits to Kidney Specialists. CMS Exs. 1, 10.
2. A September 13, 2023 email from CMS to Petitioner and Kidney Specialists requested that they submit Petitioner’s Drug Enforcement Administration

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(DEA) certification. CMS warned that it could reject Petitioner’s enrollment application if Petitioner did not provide the requested document within 30 days. CMS Ex. 2.

3. On October 17, 2023, a CMS contractor rejected Petitioner’s enrollment application because Petitioner did not submit the requested DEA certification. The CMS contractor advised that if Petitioner wanted to enroll in the Medicare program, he would have to submit a new enrollment application. CMS Ex. 3.
4. On December 5, 2023, CMS received from Petitioner applications for enrollment in the Medicare program as a physician and the reassignment of Medicare benefits to Kidney Specialists. CMS Exs. 4, 9.
5. On December 13, 2023, a CMS contractor approved Petitioner’s enrollment and reassignment applications with an effective date of November 5, 2023. CMS Ex. 5 at 1.
6. On January 17, 2024, Petitioner requested reconsideration and asked for a change in the enrollment and reassignment effective dates to September 1, 2023. CMS Ex. 6.
7. On May 7, 2024, the CMS contractor issued a reconsidered determination stating that Petitioner’s effective date for enrollment and the reassignment of Medicare benefits is December 5, 2023, and Petitioner’s period of retrospective billing commenced on November 5, 2023. CMS Ex. 8.

VII. Conclusions of Law and Analysis

1. The effective date for Petitioner’s enrollment in the Medicare program as a physician is December 5, 2023, and Petitioner’s retrospective billing period commenced on November 5, 2023.

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” includes “a physician . . . that furnishes items or services” under the Medicare provisions of the Act. 42 U.S.C. § 1395x(d). A supplier must enroll in the Medicare program to receive payment for covered items or services. 42 C.F.R. § 424.505. To enroll, the supplier must submit an enrollment application and provide all required information. 42 C.F.R. § 424.510(a).

When CMS enrolls a physician, CMS sets an effective date for billing privileges that is the later of the “date of filing” or the date the supplier began furnishing services at a new practice location. 42 C.F.R. § 424.520(d)(1), (2)(i). The “date of filing” is the date that

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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 for a physician, CMS may permit a retrospective billing period of up to 30 days, except in circumstances not applicable to this case. 42 C.F.R. § 424.521(a)(1)(i), (2)(i).

In this case, Petitioner requested an exception to the rules concerning effective dates and asked for an August 1, 2023 effective date of enrollment. Hearing Req. Petitioner stated that he did not receive CMS’s email requesting his DEA certification after he filed the first enrollment application on August 29, 2023. CMS Ex. 6.

There are no exceptions to the requirement that the effective date for a physician’s enrollment is the date that CMS receives an enrollment application that CMS is able to process to approval. Petitioner’s August 29, 2023 enrollment application cannot serve as a basis for an earlier effective date because CMS rejected that application due to a missing DEA certification. Whether CMS correctly rejected Petitioner’s enrollment application (i.e., whether CMS properly provided Petitioner with an opportunity to submit the DEA certification) is not a matter that is subject to appeal; therefore, I cannot consider that question in this decision. 42 C.F.R. § 424.525(d).

CMS received an enrollment application from Petitioner on December 5, 2023, which CMS processed to approval; therefore, December 5, 2023 is the effective date of Petitioner’s enrollment in the Medicare program. 42 C.F.R. § 424.520(d)(1)(i). CMS provided Petitioner with a 30-day period of retrospective billing privileges, i.e., from November 5, 2023, which is the longest period CMS could give. 42 C.F.R. § 424.521(a)(1)(i).

2. The effective date for Petitioner’s reassignment of Medicare benefits to Kidney Specialists is November 5, 2023.

The Act permits beneficiaries to assign their Medicare benefits to an enrolled physician or non-physician supplier. 42 U.S.C. § 1395u(b)(3)(B)(ii). In certain circumstances, a supplier who has received an assignment of benefits may reassign those benefits to an employer, individual, or entity with which the supplier has a contractual arrangement. 42 U.S.C. § 1395u(b)(6); 42 C.F.R. § 424.80(b)(1)-(2). When CMS approves the reassignment of Medicare benefits, the reassignment “is effective beginning 30 days before the [reassignment application] is submitted if all applicable requirements during that period were otherwise met.” 42 C.F.R. § 424.522(a).

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On December 5, 2023, CMS received Petitioner’s application to reassign Medicare benefits to Kidney Specialists. Therefore, the reassignment is effective November 5, 2023.

VIII. Conclusion

1. December 5, 2023 is the effective date of Petitioner’s enrollment in the Medicare program.
2. November 5, 2023 is the date on which Petitioner’s period of retrospective billing privileges starts.
3. November 5, 2023 is the effective date of Petitioner’s reassignment of Medicare benefits to Kidney Specialists.