Cardiovascular Medicine of Slidell/Keith Hickey, M.D., DAB CR6679 (2025)

DECISION

Petitioner, Cardiovascular Medicine of Slidell/Keith Hickey, M.D. (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 Novitas Solutions (Novitas), a Medicare Administrative Contractor, properly determined that the effective date of Petitioner’s billing privileges is April 10, 2024, with retrospective billing permitted as of March 11, 2024.

I.     Background

Petitioner is a physician with a specialty in cardiology with a clinic/group practice located in Slidell, Louisiana.  CMS Exhibit (Ex.) 1.  Petitioner sought to enroll his group practice in the Medicare program and to reassign his individual billing privileges to the group practice.  Id.  On July 27, 2023, Petitioner electronically submitted a CMS-855I form.  Id.

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On November 15, 2023, Novitas advised Petitioner that additional information was required to process the application.  CMS Ex. 2.  Specifically, Novitas requested that Petitioner complete the forms CMS-855B or CMS-855I, provide documentation verifying the group practice’s legal business name, and submit a complete Medicare Participating Agreement Form.  Id.  Novitas warned that a failure to provide the requested information within 30 days may cause a rejection of the application.  Id. at 2.  On January 2, 2024, Novitas rejected Petitioner’s application after it did not receive the requested information.  CMS Ex. 3.

Thereafter, on April 10, 2024, Petitioner electronically filed both a CMS-855B, Medicare enrollment application and a CMS-855R, reassignment of benefits application.  CMS Exs. 4, 5.  On April 23, 2024, Novitas advised Petitioner that he submitted an incorrect application for his requests as a sole owner and should instead complete a CMS-855I, change of information application.  CMS Ex. 6.  Novitas again warned that a failure to submit the proper application within 30 days may lead to a rejection of the application.  Id.  On May 23, 2024, Novitas rejected Petitioner’s application based on a failure to submit the proper application.  CMS Ex. 7.

On that same day, May 23, 2024, Petitioner also submitted additional information, as requested by Novitas in its April 23, 2024 letter, and electronically filed the CMS-855I and CMS-855R applications.  CMS Ex. 8, 9.  On June 7, 2024, Novitas advised Petitioner that he must submit a complete Medicare Participating Agreement Form and that an unannounced site visit of Petitioner’s place of business would occur pursuant to 42 C.F.R. § 424.517.  CMS Ex. 10.  Following the receipt of additional information, Novitas informed Petitioner on June 25, 2024, that he must “correct and resubmit Part II of [the] Electronic Funds Transfer Authorization Agreement [because] the Provider/Supplier’s Legal Business Name does not match the CMS-855I and/or attached documentation.”  CMS Exs. 11, 12.  After receipt of the requested documentation, Novitas approved Petitioner’s application on July 10, 2024, with an effective date of May 23, 2024, and retrospective billing permitted as of April 23, 2024.  CMS Exs. 13, 14.

On September 13, 2024, Petitioner submitted a request for reconsideration.  CMS Exs. 15-17.  Petitioner requested that the effective date for the group practice and his reassignment of billing privileges be changed to April 23, 2023.  CMS Ex. 16 at 1.  Petitioner noted that his practice opened on March 1, 2023, and he detailed the “very long, painful process” to receive Medicare enrollment since submitting the initial application on July 27, 2023.  Id. at 1-4.  Petitioner also detailed the financial toll the application process has placed on him and his practice.  Id. at 3-4.

On October 14, 2024, Novitas granted a favorable decision for Petitioner.  CMS Ex. 18.  In its decision, Novitas conceded that it erred in its May 23, 2024 correspondence when it “prematurely rejected” Petitioner’s earlier, April 10, 2024 application.  Id. at 7.  As a

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result, Novitas modified Petitioner’s Medicare enrollment to an effective date of April 10, 2024, and with retrospective billing permitted as of March 11, 2024.  Id.

On December 12, 2024, Petitioner timely requested a hearing to dispute the reconsidered determination.  DAB E-File Doc. No. 1.  On December 17, 2024, the undersigned Administrative Law Judge (ALJ) was designated to hear and decide this case.  Id. at No. 2.  That same day, the Civil Remedies Division (CRD) acknowledged the hearing request and issued my Standing Pre-hearing Order (Standing Order).  Id. at No. 2a.  Among other things, the Standing Order instructed the parties to file prehearing exchanges by specified dates.  Id.  On January 21, 2025, CMS timely filed a prehearing brief (CMS Br.), which included a motion for summary judgment and 18 proposed exhibits (CMS Exs. 1-18).  On February 25, 2025, Petitioner timely filed a prehearing brief in opposition to CMS’s motion for summary judgement (P. Br.) along with four proposed exhibits (P. Exs. 1-4).

II.     Admission of Evidence

Petitioner did not object to CMS Exhibits 1 through 18, which consist of documents from the proceedings below.  In the absence of objection, I admit CMS Exhibits 1 through 18 into the record.

Petitioner submitted four proposed exhibits (P. Exs. 1-4).1  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)).  Petitioner’s Exhibits 1-3 were previously submitted to CMS during the proceedings below.  Therefore, Petitioner’s Exhibits 1-3 are admitted into the record.

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 Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004).  An in-person hearing to cross-examine witnesses will be necessary only if a party files admissible, written direct testimony, and the opposing party asks to cross-examine.  Neither party has submitted written direct testimony.  A hearing for the purpose of cross-examination is therefore unnecessary.  Standing Order §§ 11-13.  I consider the record in this case to be closed, and the matter is ready for a decision on the merits.  Id. § 14.  Therefore, I deny CMS’s motion for summary judgment

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as moot.  In rendering this decision on the record, I address the matters raised by Petitioner in the hearing request.

IV.     Issue

Whether Novitas, acting on CMS’s behalf, had a legitimate basis to assign April 10, 2024, as the effective date of Petitioner’s Medicare billing privileges with retrospective billing permitted as of March 11, 2024.

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

A. Applicable Legal Authority 

The Social Security Act (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 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)(1).  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 Medicare contractor’s 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 “at its discretion, may 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) (emphasis added).  If CMS or its contractor rejects an enrollment application, the supplier must submit a new enrollment application.  42 C.F.R.

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§ 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).

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)(1).

In certain circumstances, a supplier who has received an assignment of benefits may reassign those benefits to an employer, or to an individual or entity with which the supplier has a contractual arrangement.  Act § 1842(b)(6) (42 U.S.C. § 1395u(b)(6)); 42 C.F.R. § 424.80(b)(1)‑(2).  To reassign Medicare benefits, a supplier must submit and obtain CMS’s approval of a reassignment application.  Gaurav Lakhanpal, MD, DAB No. 2951 at 1-2 (2019) (citing 71 Fed. Reg. 20,754, 20,756 (Apr. 21, 2006)).  CMS applies the effective date rules at 42 C.F.R. §§ 424.520(d) and 424.521(a)(1) to reassignments of Medicare benefits.  See Medicare Program Integrity Manual (MPIM) (CMS Pub. 100-08) §§ 15.5.20(E)(3), 15.17.

The relevant regulations further provide that CMS may permit a 30-day retrospective 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).

B. Findings of Fact and Conclusions of Law2

1. Petitioner’s effective date of Medicare enrollment is April 10, 2024, with retrospective billing privileges as of March 11, 2024.

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” of an application that is subsequently approved 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).

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In this case, Novitas received an enrollment application from Petitioner on April 10, 2024.  CMS Exs. 4, 5, 18.  While Novitas initially rejected this application, Novitas, in a reconsidered determination, determined that the April 10, 2024 application should not have been rejected.  CMS Exs. 7, 18.  Novitas stated that the April 10, 2024 application was “prematurely rejected” and acknowledged a “processing error.”  CMS Ex. 18 at 7.  I infer from these statements that the application received on April 10, 2024, was able to be processed to approval and therefore Novitas appropriately determined the effective date to be April 10, 2024.  CMS Ex. 18 at 7; Timothy Onyiuke, DAB No. 3092 at 2 (2023).

Furthermore, Novitas correctly found that Petitioner qualified for retrospective billing privileges of 30 days, resulting in an effective retrospective billing date of March 10, 2024.  CMS Ex. 18 at 7; see 42 C.F.R. § 424.521(a)(1)(i).

Thus, under the above regulations, based on the April 10, 2024 application that was able to be processed to approval, Petitioner’s billing privileges can begin no earlier than the dates cited above.

2. I have no authority to review Novitas’s rejection of Petitioner’s July 27, 2023 enrollment application, and equitable considerations do not provide me with the basis to grant Petitioner an earlier effective date.

Petitioner argues that I should grant an effective enrollment date of April 23, 2023.  P. Br. at 10.  In support of this claim, Petitioner states that he “has been diligently working to obtain Medicare enrollment as far back as June 2023.”  Id. at 8.  Petitioner blames much of the delay on Novitas because he “had been waiting on a response from Medicare regarding his original application for [] over six months” when he was informed that additional information was required to process his application.  Id.  While Petitioner does not dispute that his July 27, 2023 enrollment application was rejected, he states that at the time of the rejection, Petitioner “was attempting to obtain the requested documentation from the IRS, but the turnaround for such documentation was more than the 30 days that Petitioner was initially given to obtain the documentation.”  Id. at 9.

Petitioner appears to be arguing that had Novitas processed his application in a more efficient manner, it may have approved his initial application.  Id. at 7-9.  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.”  James Shepard, M.D., DAB No. 2793 at 8.  Moreover, there is “no applicable authority allowing a supplier to seek review of an unappealable rejection

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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 Novitas should approve the earlier application and award 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.

Petitioner’s arguments may also be construed as requests for equitable relief.  See, e.g., P. Br. at 7 (“Petitioner was seeing and treating patients enrolled in Medicare throughout the entirety of the application process and has missed out on months of needed revenue due to the red tape, bureaucratic and unnecessary delays by Novitas.”); P. Br. at 8 (“This situation has caused considerable financial, emotional, and mental strain. . . .  All Petitioner is simply requesting is that he be reimbursed for work that he has already performed, and CMS would have already reimbursed Petitioner for, but for bureaucratic delay.”).

I am sympathetic to Petitioner’s situation.  I acknowledge his efforts to comply with the application process and Novitas’s improper rejection of his application.  However, the request to modify the effective date of enrollment due to extenuating circumstances has no basis in law and is instead a plea for equitable relief.

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.”).

My jurisdiction in this case is limited to review of CMS’s determination of the effective date of Petitioner’s applications under 42 C.F.R. § 424.520(d).  Here, the governing regulations support an effective date of April 10, 2024, with retrospective billing privileges as of March 11, 2024, and I may not adjust these dates based on equitable grounds.  Again, 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).

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VII.     Conclusion

The effective date for Petitioner’s Medicare billing privileges is April 10, 2024, with retrospective billing privileges as of March 11, 2024.