Green Valley Hospital Medicine Physicians, LLC, DAB CR6617 (2025)

DECISION

Petitioner, Green Valley Hospital Medicine Physicians, LLC (Petitioner), appeals the determination establishing the effective date of its enrollment and billing privileges as a Medicare supplier.  For the reasons explained below, I find that the Centers for Medicare & Medicaid Services (CMS), acting through CGS Administrators (CGS), a Medicare Administrative Contractor, properly determined that the effective date of Petitioner’s billing privileges is September 26, 2023, with retrospective billing permitted as of August 27, 2023.  I have no authority to review CMS’s determination to reject Petitioner’s initial application.  42 C.F.R. § 424.525(d)1; see Michael B. Zafrani, M.D., DAB No. 3075 at 3 (2022).

I.        Background 

Petitioner is a group practice of hospitalists that treat admitted patients at a hospital in Paducah, Kentucky.  See, e.g., DAB Electronic Filing System (E-File) Doc. No. 1 at 1.  On August 4, 2023, Petitioner submitted an initial CMS-855B form, seeking to enroll in

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the Medicare program.  CMS Exhibit (Ex.) 1 at 30-39.  On September 22, 2023, CGS rejected Petitioner’s application.  Id. at 27-29.  CGS rejected the application because it was unable to verify Petitioner’s practice location and required “a valid address and/or phone number for the given address.”  Id. at 29.

Petitioner submitted a new CMS-855B enrollment application on September 26, 2023.  CMS Ex. 1 at 18-25.  On October 11, 2023, CGS advised Petitioner that it required corrections to its application because the telephone number provided “was not verified to be connected to the practice location listed.”  CMS Ex. 3 at 1-2.  Petitioner subsequently submitted corrections to this application.  CMS Ex. 2.  On November 17, 2023, CGS notified Petitioner that its Medicare enrollment application received on September 26, 2023, was approved with retrospective billing permitted as of August 27, 2023.  CMS Ex. 1 at 15-17.

On November 20, 2023, Petitioner submitted a reconsideration request seeking that the effective date be modified to start as of August 1, 2023.  Id. at 7-8.  On January 3, 2024, CGS issued an unfavorable reconsidered decision finding that the effective date cannot be changed.  Id. at 1-3.

On March 18, 2024, Petitioner timely requested a hearing to dispute the reconsidered determination.  DAB E-File Doc. No. 1.  On March 20, 2024, Administrative Law Judge (ALJ) Keith Sickendick was designated to hear and decide this case.  Id. at Doc. No. 2.  That same day, the Civil Remedies Division (CRD) acknowledged the hearing request and issued ALJ Sickendick’s Standing Pre-hearing Order (Standing Order).  Id. at Doc. No. 2a.  Among other things, the Standing Order instructed the parties to file prehearing exchanges by specified dates.  Id.  On April 19, 2024, CMS timely filed a prehearing brief (CMS Br.), which included a motion for summary judgment and three proposed exhibits (CMS Exs. 1-3).  Id. at Doc. No. 4a-4e.  On May 20, 2024, Petitioner timely filed a prehearing brief in opposition to CMS’s motion for summary judgment and cross-motion for summary judgment (P. Br.) along with two exhibits (P. Exs. 1-2).  Id. at Doc. No. 6-6c.  On May 30, 2024, CMS filed an opposition and reply brief to Petitioner’s cross-motion for summary judgment (CMS Opp.).  Id. at Doc. No. 7.  On June 5, 2024, Petitioner filed a reply brief for its cross-motion for summary judgment (P. Rep. Br.).  Id. at Doc. No. 8.

On November 1, 2024, this case was transferred to the undersigned for adjudication.  Id. at Doc. No. 9.

II.      Admission of Evidence 

Petitioner did not object to CMS Exs. 1 through 3, which consist of documents from the proceedings below.  In the absence of objection, I admit CMS Exs. 1 through 3 into the record.

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Petitioner submitted two exhibits (P. Exs. 1-2).  Although CMS did not object to Petitioner’s exhibits, I “must exclude ‘new documentary evidence’ – that is, documentary evidence that a provider did not previously submit to CMS at the reconsideration stage (or earlier) – unless [I] determine[] that ‘the provider or supplier has good cause for submitting the evidence for the first time at the ALJ level.’”  Care Pro Home Health, Inc., DAB No. 2723 at 11 (2016) (citing 42 C.F.R. § 498.56(e)(1)).

The two exhibits are affidavits from:  1) Boykin Robinson, MD, Petitioner’s manager; and 2) Keith A. Hall, Vice-President of non-party Arietis Health, LLC, which assisted Petitioner with its credentialing and payer applications.  P. Exs. 1-2.  Both exhibits also contain additional documents.  Id.  In the absence of objection from CMS, I admit the affidavits into evidence as the individuals’ written direct testimony.  Arkady B. Stern, M.D., DAB No. 2329 at 4 n.4 (2010) (“Testimonial evidence that is submitted in written form in lieu of live in-person testimony is not ‘documentary evidence’ within the meaning of 42 C.F.R. § 498.56(e), which requires good cause for submitting new documentary evidence to the ALJ.”).

However, to the extent Petitioner’s exhibits also include additional new documentary evidence, I am required to exclude these documents from evidence pursuant to 42 C.F.R. § 498.56(e)(1)-(2).  Petitioner has not shown good cause for submitting these documents for the first time at the ALJ level.  Petitioner could have submitted these documents with its November 20, 2023 request for reconsideration.  Also, based on the record, I am unable to find good reason as to why Petitioner filed these documents for the first time at the ALJ level.  Based on my review of these documents, Petitioner already had these documents at the time of requesting reconsideration.  Thus, I decline to admit all new documents into the record that accompany the affidavits in P. Exs. 1-2.

III.     Decision on the Written Record

Petitioner is entitled to a hearing on the record before an ALJ under the Social Security Act (“Act”).  Act §§ 205(b), 1866(h)(1), (j); Crestview Parke Care Center v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004).  Petitioner may file a written waiver of the right to appear and present evidence at a hearing.  42 C.F.R. § 498.66(a).  If a Petitioner waives the right to appear and present evidence, no hearing is required.  42 C.F.R. § 498.66(b).

Petitioner affirmatively waived the right to an oral hearing, and I conclude that the waiver is acceptable.  P. Rep. Br. at 1.  CMS also agreed to a waiver of an oral hearing.  CMS Opp. at 1.  Accordingly, no oral hearing is necessary and a decision on the documentary evidence and briefs is appropriate.  Therefore, I deny both parties’ motions for summary judgment as moot.  In rendering this decision on the record, I address the matters raised by Petitioner in its hearing request.

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IV.     Issue

Whether CGS, acting on CMS’s behalf, had a legitimate basis to assign September 26, 2023, as the effective date of Petitioner’s Medicare billing privileges with retrospective billing permitted as of August 27, 2023.

V.       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).

VI.     Discussion

1. Applicable Legal Authority

The Act authorizes the Secretary of Health and Human Services to promulgate regulations governing the enrollment process for providers and suppliers.  42 U.S.C. §§ 1302, 1395cc(j).  “Suppliers” are physicians or other practitioners, 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).  “Providers” include hospitals, skilled nursing facilities, and home health agencies.  42 U.S.C. § 1395x(u).

A provider or supplier that seeks billing privileges under Medicare must “submit enrollment information on the applicable enrollment application.”  42 C.F.R. § 424.510(a).  A “provider or supplier must submit a complete enrollment application and supporting documentation to the designated Medicare fee-for-service contractor,” and the application must include “[c]omplete, accurate, and truthful responses to all information requested within each section as applicable to the provider or supplier type.”  42 C.F.R. § 424.510(d)(1)-(2).  “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).

CMS “may reject” an application if a supplier “fails to furnish complete information on the provider/supplier enrollment application within 30 calendar days from the date of the contractor request for the missing information.”  42 C.F.R. § 424.525(a)(1); see also 42 C.F.R. § 424.502 (definition of Reject/Rejected).  CMS may “at its discretion, choose to extend the 30-day period [for submitting additional information] if CMS determines that the . . . supplier is actively working with CMS to resolve any outstanding issues.”  42 C.F.R. § 424.525(b).  If CMS or its contractor rejects an enrollment application, the supplier must submit a new enrollment application.  42 C.F.R. § 424.525(c).  The decision by CMS or its contractor to reject an enrollment application is not subject to appeal.  42 C.F.R. § 424.525(d).

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When CMS determines that a prospective supplier meets the applicable enrollment requirements, it grants Medicare billing privileges.  The effective date of the billing privileges for a supplier is the later of “(i) the date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or (ii) [t]he date . . . the supplier first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d).  The relevant regulations further provide that CMS may permit a 30-day retroactive period of billing if the supplier has met all program requirements and if circumstances precluded enrollment in advance of providing services to Medicare beneficiaries, or CMS may allow a supplier to bill retrospectively for up to 90 days if a Presidentially-declared disaster precluded enrollment in advance of providing services.  42 C.F.R. § 424.521(a).

2. Findings of Fact and Conclusions of Law2
   1. Petitioner’s effective date of Medicare enrollment is September 26, 2023, with retrospective billing privileges as of August 27, 2023.

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” a signed 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 2 (2016).

In this case, CGS received an enrollment application from Petitioner on September 26, 2023, and this application was processed to approval.  CMS Ex. 1 at 15-17, 19-25.  CGS appropriately found the effective date of Medicare billing privileges for Petitioner to be September 26, 2023, the date of the filing of the Medicare application that was subsequently approved by the contractor.  CMS Ex. 1 at 15-17, 19; Timothy Onyiuke, DAB No. 3092 at 2 (2023).  CGS also correctly found that Petitioner qualified for retrospective billing privileges of 30 days, resulting in an effective retrospective billing date of August 27, 2023.  Id.; see 42 C.F.R. § 424.521(a)(1)(i).

Thus, under the above regulations, based on the application that was processed to approval, Petitioner’s billing privileges can begin no earlier than the dates cited above.

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2. I have no authority to review CGS’s rejection of Petitioner’s August 4, 2023 enrollment application.

Petitioner argues that I should grant it an effective enrollment date of August 1, 2023.  P. Br. at 1-2.   In support of this claim, Petitioner, states that its application was “actively being updated” at the time it was rejected, and it further questions the “utter absurdity and circularity of the repeated requests [for a valid telephone] and receipt of the same information from and to [CGS], over and over again.”  Id at 11.  Petitioner adds that because of CGS’s “ignorance, lack of effort, lack of listening, and/or caring, and despite repeated explanations and submissions with alternative telephone numbers, [CGS] could not or would not figure out that hospitalists do not have an office telephone number, therefore, instead of working to figure out why, [CGS] simply ‘Rubber Stamped’ a rejection.”  Id. at 10.  Petitioner, however, does not dispute that CGS “rejected [its] original Medicare Enrollment Application because [CGS was] ‘unable to verify the [practice] location is valid.’”  Id. at 2; see CMS Ex. 1 at 27-29.

Petitioner appears to be arguing that had CGS provided clearer instructions, it would have provided a valid telephone number for its practice.  Alternatively, Petitioner is arguing that, even if it provided incorrect or incomplete information in his applications, CGS should not have rejected its application.

Either way, Petitioner is arguing that CGS should not have rejected Petitioner’s original application.  However, an administrative law judge may not review a contractor’s decision to reject an enrollment application.  42 C.F.R. § 424.525(d); James Shepard, M.D., DAB No. 2793 at 3 (2017).  As the Shepard decision explains, a supplier’s argument that the Medicare contractor did not process a prior application properly “is an implicit request that we assess the reasonableness or legality of [the contractor’s] decision to reject the . . . application.  However, section 424.525(d) plainly prohibits [administrative law judge] or Board review of that decision.”  Shepard, DAB No. 2793 at 8.  Moreover, there is “no applicable authority allowing a supplier to seek review of an unappealable rejection of an incomplete application by the ‘back door’ route of challenging the effective date of a later application which was processed to approval.”  Wishon Radiological Med. Grp., Inc., DAB No. 2941 at 8 (2019).

Therefore, Petitioner’s contention that CGS should have approved the earlier application and awarded an earlier effective date, amounts to a backdoor challenge to the contractor’s rejection of its application – a determination for which there are no administrative appeal rights.  Id.

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3. Equitable considerations do not provide me with the basis to grant Petitioner an earlier effective date.

Petitioner’s arguments may also be construed as requests for equitable relief.  See, e.g., P. Br. at 21 (“Petitioner [] (and, effectively, the hospitalist physicians who provided the service) were denied reimbursement for the care and treatment of all Medicare Hospital patients from August 1, 2023, to August 27, 2023.”); id. at 3 (“[i]f someone wants to reach one of the hospitalists, they would need to call the hospital and have the hospitalist paged”); id. at 10 (“hospitalists do not have an office telephone number”); P. Opp. Br. at 6 (“It was the inability of [CGS] to grasp the nature of a hospital-based practice that caused all the issues, delays, and problems in [Petitioner’s] Enrollment.”).

However, I have no authority to grant Petitioner equitable relief and have no authority to grant Petitioner an earlier effective date based on equitable considerations.  US Ultrasound, DAB No. 2302 at 8 (2010); Howard M. Sokoloff, DAB No. 2972 at 9 (2019).  The Board “‘has repeatedly held that it, and ALJs, are bound by the applicable regulations and cannot alter an effective date based on principles of equity.’”  Gaurav Lakhanpal, MD, DAB No. 2951 at 7 (2019) (citations omitted); see also Decatur Health Imaging, LLC, DAB No. 2805 at 11 (2017) (“Equitable considerations . . . provide no basis to . . . assign an earlier effective date.”).

Here, the governing regulations require an effective date of September 26, 2023, with retrospective billing privileges as of August 27, 2023, and I may not adjust that date based on equitable grounds.  While I am sympathetic to Petitioner’s inability to receive Medicare reimbursement for services rendered, I do not have authority to add a period of retrospective or retroactive billing.  See 42 C.F.R. § 498.3(b)(15).

VII.    Conclusion

The effective date for Petitioner’s Medicare billing privileges is September 26, 2023, with retrospective billing privileges as of August 27, 2023.