Ocracoke Health Center, Inc. d/b/a Manteo Community Health Center, DAB CR6626 (2025)

DECISION

October 12, 2023, is the effective date of Petitioner’s Medicare enrollment and billing privileges as a federally qualified health center (FQHC).

I.  Background and Undisputed Facts

On July 17, 2023, Petitioner received a federal award of $2,528,499 for the project period February 1, 2023 through January 31, 2026, from the Health Resources & Services Administration (HRSA), U.S. Department of Health & Human Services to operate a FQHC.  CMS Ex. 1 at 62-64.  The HRSA notice of award materials reminded Petitioner that grantees, such as Petitioner, are required to file Medicare enrollment applications for each permanent unit at which they will provide services.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 64.

On July 19, 2023, Palmetto GBA, a Medicare administrative contractor (MAC), received a Medicare enrollment application from Petitioner to enroll in Medicare as a FQHC.  CMS Ex. 1 at 54-61.  The MAC informed Petitioner of required corrections to its application by letter dated August 2, 2023.  CMS Ex. 1 at 44-45.  On September 6, 2023,

Page 2

the MAC notified Petitioner that the enrollment application received on July 19, 2023, was rejected.  CMS Ex. 1 at 41-42.

Petitioner submitted a second application on September 21, 2023.  CMS Ex. 1 at 30-37.  The MAC informed Petitioner of required corrections by letter dated October 4, 2023.  CMS Ex. 1 at 27-28.

On October 12, 2023, the Director of the Division of Enrollment Policy & Operations, HRSA, on behalf of the Secretary of Health & Human Services (the Secretary) accepted Petitioner to participate in Medicare as an FQHC.  CMS Ex. 1 at 16.

On December 12, 2023, the MAC informed Petitioner of the initial determination to enroll Petitioner in Medicare as an FQHC effective October 12, 2023.  CMS Ex. 1 at 9.

On December 12, 2023, Petitioner requested reconsideration of the MAC’s initial determination.  Petitioner requested that the effective date of its Medicare enrollment and billing privileges be changed to July 10, 2023, the date Petitioner began operating its practice.  CMS Ex. 1 at 7-8.

On May 7, 2024, a CMS hearing officer upheld the October 12, 2023 effective date of Petitioner’s Medicare enrollment and billing privileges as an FQHC.  CMS Ex. 1 at 1-6.

On May 13, 2024, Petitioner filed a request for hearing (RFH) before an administrative law judge (ALJ).  The case was assigned to me on May 14, 2024, and my Standing Order was issued.  On July 1, 2024, CMS filed a motion for summary judgment (CMS Br.) with CMS Ex. 1.  Petitioner has not objected to my consideration of CMS Ex. 1, and it is admitted as evidence.  Petitioner filed a response on July 18, 2024 (P. Br).  Petitioner also filed a document from HRSA showing that Petitioner serves a medically underserved area.  I accept as true for purposes of summary judgment that Petitioner serves a medically underserved area.  However, that fact is not material to my decision as it is not a fact of consequence, the document is not relevant, and not admitted.  Fed. R. Evid. 401.  CMS filed a reply brief on August 9, 2024.

II.  Discussion

1. Applicable Law

The Medicare program is established by Title XVIII of the Social Security Act (Act) (42 U.S.C. §§ 1395-1395lll), and includes Medicare Parts A, B, C, and D.  The Medicare program pays for covered health care items and services furnished to Medicare beneficiaries by qualified providers and suppliers.  Act §§ 1811-1860D-43.  Qualified providers and suppliers are those who have a provider agreement or supplier approval, if

Page 3

required; are enrolled in Medicare; and are granted billing privileges.  42 C.F.R. pt. 424, subpt. P; pt. 489.1

An FQHC is an entity that has an agreement with CMS to meet Medicare program requirements under 42 C.F.R. § 405.2434 that:  has a grant under section 330 of the Public Health Service Act (42 U.S.C. § 254b); HRSA has determined meets requirements to receive a Public Health Services grant and receives funding pursuant to contract from an entity that has a grant; or is operated by a tribe or tribal organization funded under the Indian Healthcare Improvement Act.  Act § 1861(aa)(4); 42 C.F.R. § 405.2401.  The entity must show that it meets the statutory and regulatory definition of an FQHC and that it complies with the requirements of 42 C.F.R. Part 491 (except 42 C.F.R. § 491.3 which does not apply) and 42 C.F.R. Part 405, subpart X.  42 C.F.R. §§ 405.2430(a); 405.2434(a).

An entity requests to participate in Medicare as an FQHC, as in this case by filing a Medicare enrollment application.  CMS will not accept an agreement until HRSA determines that the entity meets the requirements of the Public Health Services Act and approves the entity as an FQHC.  42 C.F.R. § 405.2430(b).  If CMS determines the entity meets requirements of 42 C.F.R. § 405.2430(a)(1), CMS sends the entity two copies of the agreement [Attestation Statement for Federally Qualified Health Center].  CMS Ex. 1 at 14-19.  The entity signs and returns both copies of the agreement to CMS.  42 C.F.R. § 405.2430(a)(3).  If CMS accepts the agreement, CMS returns one copy, with a notice of acceptance that specifies the effective date of the agreement and Medicare enrollment and billing privileges.  42 C.F.R. §§ 405.2430(a)(4), 489.11.

The effective date of CMS’s agreement with an FQHC is determined in accordance with 42 C.F.R. § 489.13.  42 C.F.R. § 405.2434(b).  The effective date is the date “on which CMS accepts a signed agreement which assures that the . . . FQHC meets all Federal requirements.”  42 C.F.R. § 489.13(a)(2)(i).  The effective date of an FQHC’s Medicare

Page 4

enrollment and billing privileges is the date of the agreement with CMS as provided by 42 C.F.R. § 489.13(a)(2).  42 C.F.R. § 424.520(a).

An entity has the right to ALJ review and appeal to the Departmental Appeals Board pursuant to 42 C.F.R. Part 498 if CMS does not enter into an agreement with the entity.  42 C.F.R. § 405.2430(c).  Pursuant to 42 C.F.R. § 498.3(b)(15), “[t]he effective date of a Medicare provider agreement or supplier approval” is an initial determination subject to review by an ALJ.

2. Issues

Whether October 12, 2023, is the effective date of Petitioner’s FQHC agreement with CMS and Petitioner’s Medicare enrollment and billing privileges.

3. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold text followed by my findings of undisputed fact and analysis.

1. Summary judgment is appropriate in this case.

Petitioner is entitled to a hearing on the record before an ALJ under the Act.  Act §§ 205(b); 1866(h)(1), (j); Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004).  However, when summary judgment is appropriate, no hearing is required.  The Board has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498.  See, e.g., Crestview Parke, 373 F.3d at 748-51; Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No. 1628 at 3 (1997).  The Board has accepted that Fed. R. Civ. P. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate.  I advised the parties in my Standing Order that summary judgment is an available procedural device and that the law as it has developed related to Fed. R. Civ. P. 56 will be applied.  Standing Order ¶¶ D & G.  Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law.  See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 5 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 5 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein).

Page 5

The undisputed facts set forth above are the facts necessary to resolve this case.  There is no genuine dispute of material fact related to the effective date of Petitioner’s FQHC agreement and Petitioner’s Medicare enrollment and billing privileges.  CMS is entitled to judgment as a matter of law and summary judgment is appropriate.

2. October 12, 2023, is the effective date of CMS’s FQHC agreement with Petitioner pursuant to 42 C.F.R. § 489.13(a)(2)(i).
3. October 12, 2023, is the effective date of Petitioner’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.520(a).

The regulations are clear, and their application is uncomplicated.

When an entity files a Medicare enrollment application as an FQHC, CMS must determine if the entity meets the requirements of 42 C.F.R. § 405.2430(a)(1).  If the entity meets the requirements to be an FQHC, CMS sends the entity two copies of the FQHC agreement.  The entity signs and returns both copies of the agreement to CMS.  42 C.F.R. § 405.2430(a)(3).  If CMS accepts the agreement, CMS returns one copy, with a notice of acceptance that specifies the effective date of the agreement and Medicare enrollment.  42 C.F.R. §§ 405.2430(a)(4), 489.11.

The effective date of CMS’s agreement with an FQHC is determined in accordance with 42 C.F.R. § 489.13.  42 C.F.R. § 405.2434(b).  The effective date is the date CMS signs the FQHC agreement, which signifies CMS found all FQHC requirements are met.  It is not disputed that Petitioner’s FQHC agreement was signed on behalf of the Secretary on October 12, 2023.  CMS Ex. 1 at 16.  The regulation does not grant discretion to CMS or to the ALJ to select another effective date.  The effective date of an FQHC’s Medicare enrollment and billing privileges is the date of the agreement with CMS as provided by 42 C.F.R. § 489.13(a)(2)(i).  42 C.F.R. § 424.520(a).  Once again, the regulations grant no discretion to CMS or the ALJ to select a different effective date.

Accordingly, I conclude that October 12, 2023, was the effective date of Petitioner’s FQHC agreement and its Medicare enrollment and billing privileges.

Petitioner argues that its effective date should be July 10, 2023, the date of Petitioner’s opening.  Petitioner argues that a lack of clear communication by the MAC prevented Petitioner from correcting errors, which resulted in the rejection of its first application.  Petitioner asserts that the earlier effective date would alleviate the roughly $42,000 financial burden related to unpaid claims for services rendered during the period between Petitioner’s opening and the October 12, 2023 effective date.  RFH; P. Br.  I accept Petitioner’s assertions as true for purposes of summary judgment, but they do not affect the outcome.

Page 6

The MAC’s authority to reject a Medicare enrollment application is found in 42 C.F.R. § 424.525.  Pursuant to 42 C.F.R. § 424.525(d), rejection of an application is not subject to appeal.  Therefore, the MAC’s rejection of Petitioner’s first application and the reasons for the rejection are not subject to my review and not material to deciding this case.

Petitioner’s arguments can be construed to be that the government is estopped from treating October 12, 2023, as the effective date of Petitioner’s FQHC agreement, enrollment, and billing privileges.  But as a matter of law, estoppel against the federal government, if available at all, is presumably unavailable absent “affirmative misconduct,” such as fraud.  See, e.g., Pac. Islander Council of Leaders, DAB No. 2091 at 12 (2007); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990).  There is no evidence suggesting fraud on the part of the MAC or CMS.

Petitioner’s arguments may also be viewed as requests for equitable relief.  Unfortunately, I have no authority to grant equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010).  I am bound to follow the Act and regulations, 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) (noting that “[a]n ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground”).

III.  Conclusion

For the foregoing reasons, I conclude that October 12, 2023, is the effective date of Petitioner’s FQHC agreement, Medicare enrollment and billing privileges.