Kimberly McFarland, M.D., DAB CR6700 (2025)

DECISION

I affirm the determination of the Centers for Medicare & Medicaid Services (CMS) that the effective date for the reassignment of Medicare benefits from Petitioner, Kimberly McFarland, M.D., to Ellison Medical Group Vein Treatment Center (Ellison Medical Group) is August 2, 2024.

I.  Procedural History

On February 24, 2025, Petitioner requested a hearing to challenge the determination assigning August 2, 2024, as the effective date for the reassignment of Medicare benefits between Petitioner and Ellison Medical Group.  On February 25, 2025, the Civil Remedies Division acknowledged receipt of the hearing request, informed the parties of the due dates for prehearing submissions, and issued a copy of my Standing Order.  On April 1, 2025, CMS filed a brief and three proposed exhibits (CMS Exs. 1-3).  Petitioner did not file a prehearing submission.

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II.  Admission of Evidence

I admit all of CMS's proposed exhibits into the record, without objection.  See Standing Order ¶ 10.

III.  Decision on the Written Record

I directed the parties to submit the written direct testimony for 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).  Finally, I stated:  "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.

Because neither party submitted written direct testimony from any witnesses and all submission deadlines have passed, I decide this case on the written record.  Anil Hanuman, D.O., DAB No. 3080 at 11-12 (2022).

IV.  Issue

Whether August 2, 2024, is the correct effective date for the reassignment of Medicare benefits from Petitioner to Ellison Medical Group.

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. Petitioner is a physician who has a specialty in interventional radiology.  CMS Ex. 2 at 1.
2. On October 1, 2024, CMS received an electronically filed application from Petitioner to reassign her Medicare benefits to Ellison Medical Group.

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CMS Ex. 1.

3. On October 10, 2024, the CMS contractor, Noridian Healthcare Solutions (Noridian), approved Petitioner's application and set August 2, 2024, as the effective date for Petitioner's reassignment.  CMS Ex. 2 at 1.
4. In October 2024, Petitioner requested reconsideration of the August 2, 2024 effective date for the reassignment of her Medicare benefits.  CMS Ex. 3.
5. In a January 23, 2025 reconsidered determination, Noridian affirmed August 2, 2024, as the effective date for Petitioner's reassignment.  Electronic Filing System Doc. No. 1a.

VII.  Conclusion of Law and Analysis

1. The effective date for Petitioner's reassignment of Medicare benefits to Ellison Medical Group is August 2, 2024.

Physicians enrolled in the Medicare program are considered to be "suppliers."  42 U.S.C. § 1395x(d).  The Social Security 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).  CMS has interpreted the regulations to permit CMS to apply an additional 30-day retrospective billing period to the effective date for the reassignment.  Medicare Program Integrity Manual (MPIM) (CMS Pub. 100-08) § 10.6.2(C); see also 42 C.F.R. § 424.521(a)(1)(i).

On October 1, 2024, CMS received Petitioner's application to reassign Medicare benefits to Ellison Medical Group, which it approved.  Therefore, the reassignment effective date, when combined with the retrospective billing period, is August 2, 2024.

2. I cannot change the effective date of the reassignment on equitable grounds.

Petitioner does not deny that she submitted her reassignment application to CMS on October 1, 2024.  Rather, Petitioner argues that the effective date for the reassignment should be March 1, 2024, because of alleged "significant delays caused by a system glitch between CMS PECOS and Noridian, which impacted our ability to complete

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revalidations and add service locations in a timely manner."  CMS Ex. 3; see also Hearing Req. at 1.  Petitioner states that she was "explicitly advised by Medicare representatives that we could not link [Petitioner] to . . . Ellison Medical Group . . . until the revalidation was finalized."  CMS Ex. 3; see also Hearing Req. at 1.  Petitioner asserts that the revalidation request was submitted in March 2024, but was not completed until September 27, 2024.  CMS Ex. 3; see also Hearing Req. at 1.  Therefore, it was beyond Petitioner's control to submit the reassignment application earlier than she did.  CMS Ex. 3; see also Hearing Req. at 2.

Petitioner seeks review of this matter "under equitable relief principles to ensure fairness."  Hearing Req. at 2.  Petitioner cites MPIM § 10.6.2(b) as a basis for allowing retroactive billing where there have been administrative delays and argues "other similar cases have received adjustments based on CMS system errors."  Hearing Req. at 2.

As an initial matter, Noridian provided Petitioner with the longest retrospective billing privilege that it could under the MPIM and the regulations.  Further, Petitioner cites no cases showing that CMS has previously exceeded its powers under the regulations to provide a longer retrospective billing period.  Therefore, these specific arguments do not assist Petitioner.

Equitable relief here would need to be through estoppel.  "Estoppel is an equitable doctrine invoked to avoid injustice in particular cases."  Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 59 (1984).  Estoppel is not easily applied against the government, but affirmative misconduct may serve as a basis for doing so.  Office of Personnel Management v. Richmond, 496 U.S. 414, 419, 421 (1990); Wade Pediatrics v. Dep't of Health & Human Srvs., 567 F.3d 1202, 1206 (10th Cir. 2009).  The record in this case is devoid of support for Petitioner's contentions against CMS.  Petitioner submitted no documentary evidence or written testimony to support the assertions as to why she filed her reassignment application when she did rather than at an earlier time.  Further, there is no evidence that Noridian or CMS employees engaged in affirmative misconduct.  Therefore, I cannot find the requirements for equitable estoppel are met.  See Ultrasound, DAB No. 2302, at 8 (2010); 1866ICPayday.com, L.L.C., DAB No. 2289, at 14 (2009).

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VIII.  Conclusion

The effective date of Petitioner's reassignment of Medicare benefits to Ellison Medical Group is August 2, 2024.