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                              Primary Prevention Physiotherapy PLLC and Amber Schlemmer, PT, DPT, CSCS, DAB CR5781 (2020)
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Primary Prevention Physiotherapy PLLC and Amber Schlemmer, PT, DPT, CSCS, DAB CR5781 (2020)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Civil Remedies Division





Primary Prevention Physiotherapy PLLC
(NPI: 1770006199 / PTAN: MI12508)
and
Amber Schlemmer, PT, DPT, CSCS
(NPI: 1790233658 / PTAN: MI12508001),
Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-19-1005Decision No. CR5781December 18, 2020

        
              
    

      DECISION

The effective date of Medicare enrollment and billing privileges of Petitioner, Amber Schlemmer, PT, DPT, CSCS and her solo practice, Primary Prevention Physiotherapy PLLC, is February 25, 2019, with retrospective billing privileges beginning January 26, 2019.

I.  Background and Procedural History

Wisconsin Physicians Service Insurance Corporation, a Medicare administrative contractor (MAC), notified Petitioner by letter dated March 28, 2019, that Petitioner’s application to enroll in Medicare was approved.  The letter lists the effective date as January 26, 2019.1
  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 189-91, 266-68.

Page 2

On May 15, 2019, Petitioner requested a reconsidered determination to change the effective date of enrollment so that she could file claims with Medicare for services provided to Medicare beneficiaries beginning January 1, 2019.  CMS Ex. 1 at 264.

On June 21, 2019, the MAC issued a reconsidered determination.  The reconsidered determination states that the MAC received an enrollment application (CMS-855I) on February 25, 2019, that was processed to approval.  The reconsidered determination upheld an effective date of enrollment of February 25, 2019, with the period for retrospective billing privileges beginning on January 26, 2019.  CMS Ex. 1 at 1-3.

Petitioner requested a hearing before an administrative law judge (ALJ) on August 2, 2019 (RFH).  This case was assigned to me on August 15, 2019 and an Acknowledgment and Prehearing Order (Prehearing Order) was issued at my direction.

On September 16, 2019, CMS filed a motion for summary judgment (CMS Br.) with CMS Exs. 1 through 35.  Petitioner filed a response (P. Br.) on October 28, 2019.  CMS filed its reply on November 1, 2019.

Petitioner has not objected to my consideration of CMS Exs. 1 through 35, which are admitted as evidence.

II. Discussion

**A.  Applicable Law**

Section 1831 of the Social Security Act (the Act) (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B.  Payment under the program for services rendered to Medicare-eligible beneficiaries may only be made to eligible providers of services and suppliers.2
  Act §§ 1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395u(h)(1)).

Page 3

Administration of the Part B program is through the MACs.  Act § 1842(a) (42 U.S.C. § 1395u(a)).

The Act requires the Secretary of Health and Human Services (the Secretary) to issue regulations that establish a process for the enrollment of providers and suppliers, including the right to a hearing and judicial review of certain enrollment determinations.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).

Pursuant to 42 C.F.R. § 424.505,3
 a provider or supplier must be enrolled in the Medicare program and be issued a billing number to have billing privileges and to be eligible to receive payment for services rendered to a Medicare-eligible beneficiary.  The effective date of enrollment in Medicare of a physician, nonphysician practitioner such as Petitioner, and physician and nonphysician practitioner organizations is governed by 42 C.F.R. § 424.520(d).  The effective date of enrollment for a physician or nonphysician practitioner may only be the later of two dates:  the date of receipt of the application for enrollment that was subsequently approved by a Medicare contractor charged with reviewing the application on behalf of CMS; or the date when the physician or nonphysician practitioner first began providing services at a new practice location.  *Id.*An enrolled physician or nonphysician practitioner may retrospectively bill Medicare for services provided to Medicare-eligible beneficiaries up to 30 days prior to the effective date of enrollment, if circumstances precluded enrollment before the services were provided.  Retrospective billing for up to 90 days prior to the effective date of enrollment is permitted only in case of a Presidentially declared disaster pursuant to 42 U.S.C. §§ 5121-5207.4
  42 C.F.R. § 424.521.

The Secretary has issued regulations that establish the right to a hearing and judicial review of certain enrollment determinations.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).  Pursuant to section 1866(h)(1) and (j)(8), a provider or supplier whose enrollment application or renewal application is denied is entitled to an administrative hearing and judicial review.  Pursuant to 42 C.F.R. § 498.3(b)(15), a provider’s effective date of

Page 4

enrollment is an initial determination that is subject to administrative review by an ALJ after a reconsidered determination.  42 C.F.R. § 498.5(*l*)(1)-(2).  Appeal and review rights are specified by 42 C.F.R. § 498.5.

**B.  Issue**

Whether summary judgment is appropriate, and

Whether Petitioner’s effective date for Medicare enrollment and billing privileges is February 25, 2019, with retrospective billing privileges beginning January 26, 2019.

**C.  Findings of Fact, Conclusions of Law and Analysis**

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

**1.  Summary judgment is appropriate.**

The material facts are undisputed, CMS is entitled to judgment as a matter of law, and summary judgment is appropriate.

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)(8); *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 the Acknowledgment and Prehearing Order (Prehearing Order) that summary judgment is an available procedural device and that the law as it has developed under Fed. R. Civ. P. 56 will be applied.  Prehearing Order ¶¶ II.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

**2.  Pursuant to 42 C.F.R. § 424.520(d), Petitioner’s effective date of Medicare enrollment is February 25, 2019, the date of receipt by the MAC of a Medicare enrollment application (CMS-855I) from Petitioner that the MAC processed to approval.**

**3.  Pursuant to 42 C.F.R. § 424.521(a)(1), Petitioner is authorized to bill Medicare for services provided to Medicare-eligible beneficiaries up to 30 days prior to her effective date of enrollment, that is, beginning on January 26, 2019.**

**a.  Undisputed Facts**

The MAC received Petitioner’s CMS-855I application to enroll in Medicare on August 15, 2018, through the web-based Provider Enrollment, Chain, and Ownership System (PECOS).  The application was withdrawn on August 28, 2018.  CMS Ex. 1 at 5‐27; CMS Exs. 10-13.

On September 17, 2018, the MAC received a CMS-855I from Petitioner through PECOS.  CMS Ex. 1 at 111-25; CMS Exs. 14-16.  The MAC rejected the application on October 26, 2018.  CMS Ex. 1 at 126-27; CMS Ex. 17.

On November 21, 2018, the MAC received a CMS-855I by PECOS.  CMS Ex. 1 at 28‐40; CMS Ex. 18.  On December 3, 2018, Petitioner withdrew the application the MAC received on November 21, 2018.  CMS Ex. 1 at 81-82, 86; CMS Exs. 20-21.

The MAC received a paper CMS-855I application to enroll on November 26, 2018.  CMS Ex. 1 at 41-80, 87-108; CMS Ex. 19.  The MAC rejected the November 26, 2018 application on January 2, 2019.  CMS Ex. 1 at 109-10; CMS Ex. 25.

The MAC received a CMS-855B by PECOS on January 4, 2019.  CMS Ex. 1 at 192-224; CMS Ex. 26.  On January 15, 2019, a CMS-885I application to enroll and a CMS-855R (application to reassign Medicare billing privileges) were received.  CMS Ex. 1 at 225‐36, 243-44; CMS Exs. 29-30.  All the applications were rejected on February 11, 2019.  CMS Ex. 1 at 245-50; CMS Exs. 33-35.

On February 25, 2019, the MAC received from Petitioner a CMS-855I application to enroll.  The MAC completed processing and approved this application on March 28, 2019.  CMS Ex. 1 at 189-91, 266-68; CMS Exs. 2-7.

I accept as true for purposes of summary judgment that Petitioner began seeing Medicare-eligible beneficiaries on January 9, 2019.  RFH.

Page 6

**b.  Analysis**

Petitioner began seeing patients on January 9, 2019.  RFH.  Petitioner argues that she submitted her first application to enroll in Medicare on August 18, 2018, and that she timely met every request of the MAC for information.  RFH.  Petitioner argues that she was provided conflicting information from the beginning of the enrollment process and that she timely responded to all development requests of the MAC and that a MAC representative commented that there must have been a system glitch.  Petitioner requests that her effective date (I infer Petitioner to mean the first date she is permitted retrospective billing) be changed to January 9, 2019, to avoid financial hardship.  P. Br.

The regulations controlling the effective date of enrollment of a nonphysician practitioner and the application of those regulations are clear.  The effective date of enrollment in Medicare of a physician, nonphysician practitioner, and physician and nonphysician practitioner organizations is governed by 42 C.F.R. § 424.520(d).  The effective date of enrollment for a physician or nonphysician practitioner may only be the **later** of two dates:  (1) the date when the physician filed an application for enrollment that was subsequently approved by a MAC charged with reviewing the application on behalf of CMS; or (2) the date when the physician first began providing services at a new practice location.  42 C.F.R. § 424.520(d).

The date of filing of an enrollment application is the date on which the Medicare contractor receives a signed enrollment application that the MAC is able to process to approval.  42 C.F.R. § 424.510(d)(1); 73 Fed. Reg. 69,725, 69,769 (Nov. 19, 2008);*Alexander C. Gatzimos, MD, JD, LLC*, DAB No. 2730 at 1 (2016).  The burden is on Petitioner, not the government, to demonstrate that the MAC or CMS received the requisite enrollment forms and that Petitioner met all enrollment requirements.  42 C.F.R. § 424.545(c).

An enrolled physician or nonphysician practitioner may retrospectively bill Medicare for services provided to Medicare-eligible beneficiaries up to 30 days prior to the effective date of enrollment, if circumstances precluded enrollment before the services were provided.  42 C.F.R. § 424.521(a)(1).

Petitioner requests that the effective date of enrollment be changed so that Petitioner may bill for services delivered to Medicare-eligible beneficiaries beginning January 9, 2019, when Petitioner started delivering services.  RFH; P. Br.  However, it is not disputed that the MAC received the application it processed to completion on February 25, 2019.  Because the MAC’s receipt of the application is later than January 9, 2019, pursuant to 42 C.F.R. § 424.520(d), the date of receipt is the effective date of Petitioner’s enrollment in Medicare.  Pursuant to 42 C.F.R. § 424.521(a)(1), the period for retrospective billing begins 30 days prior to the effective date of enrollment, and in this case, that period can begin no earlier than January 26, 2019.

Page 7

The regulations specifically provide that there is no right to request review of a MAC or CMS determination to reject an enrollment application.  42 C.F.R. § 424.525(d).  Therefore, the rejections of Petitioner’s multiple applications received by the MAC between August 15, 2018 and January 15, 2019, are simply not subject to my review.

Petitioner’s concern about financial hardship because it is unable to bill for services to Medicare-eligible beneficiaries from January 9 through 25, 2019, is understandable.  However, I have no authority to grant Petitioner equitable relief in the form of an earlier effective date of enrollment, even if I were inclined to do so.  *US Ultrasound*, DAB No. 2302 at 8 (2010).  I am bound to follow the Act and regulations and have no authority to declare statutes or regulations invalid or ultra vires.  *1866ICPayday.com, L.L.C*., DAB No. 2289 at 14 (2009).

To the extent Petitioner’s arguments may be construed to be that confusion and system glitches may be grounds to prevent denial of its request for a new effective date, 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 of affirmative misconduct by government agents.  Petitioner’s arguments, therefore, establish no basis for relief.

III.  Conclusion

For the foregoing reasons, Petitioner’s effective date of enrollment is February 25, 2019, with retrospective billing privileges beginning January 26, 2019.


          /s/
        Keith W. Sickendick

                      Administrative Law Judge
      1. As explained hereafter, January 26, 2019 is actually the first day of a 30-day period for retrospective billing and the effective date of enrollment is February 25, 2019. back to note 1
                      2. Petitioner, a physical therapist, is a “supplier” under the Act and the regulations.  A “supplier” furnishes services under Medicare and the term supplier applies to physicians or other practitioners and facilities that are not included within the definition of the phrase “provider of services.”  Act § 1861(d) (42 U.S.C. § 1395x(d)).  A “provider of services,” commonly shortened to “provider,” includes hospitals, critical access hospitals, skilled nursing facilities, comprehensive outpatient rehabilitation facilities, home health agencies, hospice programs, and a fund as described in sections 1814(g) and 1835(e) of the Act.  Act § 1861(u) (42 U.S.C. § 1395x(u)).  The distinction between providers and suppliers is important because they are treated differently under the Act for some purposes. back to note 2
                      3. Citations are to the October 1, 2018 revision of the Code of Federal Regulations (C.F.R.) that was in effect at the time of the initial determination by the MAC, unless otherwise indicated.  An appellate panel of the Departmental Appeals Board (Board) concluded in Mark A. Kabat, D.O., DAB No. 2875 at 9-11 (2018), that the applicable regulations are those in effect at the time of the initial determination.  However, the Board previously concluded that the only determination subject to my review in a provider and supplier enrollment case such as this is the reconsidered determination.  Neb Grp. of Ariz. LLC, DAB No. 2573 at 7 (2014). back to note 3
                      4. There is no allegation or evidence that such a disaster declaration was in effect at the time Petitioner began delivering services on January 9, 2019.  RFH; P. Br. back to note 4 Back to top
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