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# Nicole Phipps, DC, DAB CR5552 (2020)

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

## Nicole Phipps, DC	(NPI: 1912124165; PTAN: MI11274),	Petitioner,

## v.

## Centers for Medicare & Medicaid Services.

### Docket No. C-18-567Decision No. CR5552March 4, 2020

### DECISION

Wisconsin Physicians Service Insurance Corporation (WPS), a Medicare administrative contractor for the Centers for Medicare and Medicaid Services (CMS) approved the enrollment application of Nicole Phipps, DC (Petitioner) effective October 16, 2017, with retroactive billing privileges effective September 16, 2017. Petitioner requested a hearing before an administrative law judge because she seeks an earlier effective date. Because WPS approved Petitioner’s enrollment application that it received on October 16, 2017, it correctly determined Petitioner’s effective date of enrollment to be October 16, 2017. WPS exercised its discretion to grant Petitioner retroactive billing privileges beginning on September 16, 2017. Therefore, I affirm the effective date determination.

### I. Background

Petitioner is a chiropractor licensed to practice in Michigan. CMS Exhibit (Ex.) 1 at 3, 5. On June 3, 2017, Petitioner moved her practice to a new location. *Id.* at 8; *see also*Petitioner’s Prehearing Brief (P. Br.) at 1. In October 2017, Petitioner completed a Medicare Enrollment Application (Form CMS-855I) to enroll her practice, Complete Chiropractic of Rochester, as a Medicare supplier. CMS Ex. 1. The envelope in which Petitioner mailed her application was postmarked October 12, 2017. *Id.*at 25. CMS

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represents ‒ and Petitioner does not dispute ‒ that WPS received the application on October 16, 2017. CMS Prehearing Brief and Motion for Summary Judgment (CMS Br.) at 5.1 WPS sent letters dated October 19, 2017; November 3, 2017; November 7, 2017; and November 17, 2017, to Petitioner requesting further information. CMS Exs. 3, 4, 5, and 7. By letter dated November 27, 2017, WPS approved Petitioner’s enrollment application, effective October 16, 2017, with retroactive billing privileges effective September 16, 2017.2**CMS Ex. 8 at 1.

In her timely-filed reconsideration request, Petitioner asked that her effective date of enrollment be changed to June 3, 2017. CMS Ex. 9. Petitioner asserted that since her new practice opened on this date, she should be able to bill for services rendered between June 3, 2017 and September 16, 2017. *Id*. In response, WPS issued an unfavorable reconsidered determination that reaffirmed the October 16, 2017 effective date with retroactive billing privileges effective September 16, 2017. CMS Ex. 10 at 2.

Petitioner timely requested a hearing before an administrative law judge to challenge WPS’s unfavorable reconsidered determination. RFH. I was designated to hear and decide this case. On February 26, 2018, I issued an Acknowledgment and Pre-Hearing Order (Pre-Hearing Order) that required the parties to file a pre-hearing exchange consisting of a brief and any supporting documents, including any Motion to Dismiss or Motion for Summary Judgment. Pre-Hearing Order ¶ 4. CMS filed its brief and 12 proposed exhibits (CMS Exs. 1-12). Petitioner filed her brief and three proposed exhibits (P. Exs. 1-3).

Neither party objected to the exhibits proposed by the opposing party. Therefore, in the absence of objection, I admit CMS Exs. 1-12 and P. Exs. 1-3. Neither CMS nor Petitioner offered the written direct testimony of any witness as part of its pre-hearing exchange. As I informed the parties in my Pre-Hearing Order, “[a]n 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.” Pre-Hearing Order ¶ 10. Therefore, an in-person hearing is not necessary, and I decide this case based on the parties’ written submissions, without regard to whether the standards for summary judgment are satisfied.

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### II. Issue

The issue in this case is whether WPS, acting on behalf of CMS, properly established October 16, 2017 as the effective date of Petitioner’s enrollment in the Medicare program.

**III. Jurisdiction******

I have jurisdiction to hear and decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(*l*)(2); *see also*Social Security Act § 1866(j)(8) (codified at 42 U.S.C. § 1395cc(j)(8)).

### IV. 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.  Act §§ 1102, 1866(j) (42 U.S.C. §§ 1302, 1395cc(j)).  A “supplier” is “a physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services” under the Medicare provisions of the Act.  Act § 1861(d) (42 U.S.C. § 1395x(d)); *see also*Act § 1861(u) (42 U.S.C. § 1395x(u)).

A supplier must enroll in the Medicare program to receive payment for covered Medicare items or services.  42 C.F.R. § 424.505.  The regulations define “Enroll/Enrollment” as “the process that Medicare uses to establish eligibility to submit claims for Medicare covered items and services.”  42 C.F.R. § 424.502.  A provider or supplier seeking billing privileges under the Medicare program must “submit enrollment information on the applicable enrollment application.  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 then establishes an effective date for billing privileges consistent with 42 C.F.R. § 424.520 and may permit retrospective billing as provided in 42 C.F.R. § 424.521.  CMS sets the effective date of enrollment in accordance with the following:

The effective date for billing privileges for physicians, non‐physician practitioners, physician and non-physician practitioner organizations, and ambulance suppliers is the later of—

(1) The date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or

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(2) The date that the supplier first began furnishing services at a new practice location.

42 C.F.R. § 424.520(d).

**B. Findings of Fact and Conclusions of Law3**

**1.*On October 16, 2017, WPS received Petitioner’s application to enroll in Medicare and subsequently approved that application***

**2.*Petitioner’s effective date of Medicare enrollment is October 16, 2017, with retrospective billing privileges as of September 16, 2017.***

The effective date of Medicare enrollment and 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 8 (2016).  When a contractor approves an enrollment application, it may allow retrospective billing for up to 30 days prior to the effective date established under 42 C.F.R. § 424.520 for a physician supplier who meets all program requirements and is providing Medicare-covered services.  42 C.F.R. § 424.521(a)(1).

WPS received an enrollment application from Petitioner on October 16, 2017.  CMS Ex. 1; *see also*CMS Br. at 5.  WPS subsequently approved that application and granted Petitioner retrospective billing privileges beginning effective September 16, 2017.  CMS Ex. 8 at 2.  Accordingly, as required by regulation, the effective date of Petitioner’s Medicare enrollment is October 16, 2017.

In support of her position that I should grant her an earlier effective date of enrollment, Petitioner argues that her communications with Medicare were frustrating and challenging.  P. Br. at 1.  However, as I explain in the following section of this decision, Petitioner’s arguments essentially rely on equitable principles that are inapplicable here.

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**3.*Petitioner’s equitable arguments are not a basis to grant her an earlier effective date of Medicare enrollment.***

Petitioner argues that I should grant her an earlier effective date because she continuously worked with Medicare representatives in an effort to comply with enrollment application requirements, but received confusing information and ineffective customer support which caused her application to be delayed.  P. Br. at 1.  These contentions suggest that Petitioner may be arguing that she is entitled to an earlier effective date based on the doctrine of equitable estoppel ‒ i.e. she relied to her detriment on false or misleading information provided by contractor personnel.

However, as appellate panels of the DAB have recognized, equitable estoppel will not lie against a government entity absent some type of affirmative misconduct.  *See, e.g., Richard Weinberger, M.D. & Barbara Vizy, M.D.*, DAB No. 2823 at 19 (2017) (citing *Office of Personnel Management v. Richmond*, 496 U.S. 414, 419-21 (1990)).  As the appellate panel in *Weinberger & Vizy*emphasized, “affirmative misconduct appears to require something more than failing to provide accurate information or negligently giving wrong advice.”  DAB No. 2823 at 19(internal quotation marks and citations omitted).  Petitioner’s description of her (or her representatives’) interactions with WPS might support an inference that WPS employees negligently gave wrong advice, but not that they committed affirmative misconduct.  Therefore, I find no basis to overturn WPS’s effective date determination based on equitable estoppel.

Finally, to the extent Petitioner’s argument is that I should grant her an earlier effective date based on principles of fairness, such general appeals to equity are not a basis to overturn WPS’s determination in this case.  I may not set aside the lawful exercise of discretion by CMS or its contractor based on principles of equity.  *See US Ultrasound*, DAB No. 2302 at 8 (2010); *Cent. Kan. Cancer Inst.*, DAB No. 2749 at 10 (2016).

### IV. Conclusion

For the reasons explained above, I affirm WPS’s determination that the effective date of Petitioner’s enrollment in Medicare is October 16, 2017, with retrospective billing privileges effective September 16, 2017.  I deny CMS’s motion for summary judgment as moot.

Leslie A. WeynAdministrative Law Judge

                                              1. CMS did not paginate its brief. I refer to the PDF page number of the document as uploaded in DAB E-File (Docket Entry 4). 
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                                                  2. Both the initial and the reconsidered determinations incorrectly identify September 16, 2017, as the effective date of enrollment. CMS Ex. 8; CMS Ex. 10. September 16, 2017, is the effective date of retroactive billing privileges as allowed under 42 C.F.R. § 424.521(a). Pursuant to the regulations, the effective date of enrollment is the date the contractor receives an application that is subsequently processed to approval, which in this case is October 16, 2017. 42 C.F.R. § 424.520(d). 
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                                                  3. My findings of fact and conclusions of law appear as numbered headings in bold italic type. 
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