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                              2021
                              Ronald N. Gaster, MD, DAB CR5932 (2021)
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Ronald N. Gaster, MD, DAB CR5932 (2021)








  
  
    

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





Ronald N. Gaster, MD
(NPI:  1306940325 / PTAN:  CB342504),
Petitioner,
 
v.
 
Centers for Medicare & Medicaid Services.
Docket No. C-21-105Decision No. CR5932August 23, 2021

        
              
    

      DECISION

The effective date of Medicare enrollment and billing privileges of Petitioner is February 12, 2020.  The period for retrospective billing began January 13, 2020.

I.        Background and Procedural History

Noridian Healthcare Solutions, a Medicare administrative contractor (MAC), notified Petitioner by letter dated April 3, 2020, that his application to enroll in Medicare was approved.  The letter listed the effective date of the enrollment as January 13, 2020.1
  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 8-9.

On June 18, 2020, Petitioner requested a reconsidered determination.  Petitioner requested that his enrollment be retroactive to October 1, 2019.  CMS Ex. 1 at 5.  On September 15, 2020, the MAC issued a reconsidered determination.  The MAC

**Page 2**

determined that the effective date of Petitioner’s enrollment was February 12, 2020, the date of the MAC’s receipt of Petitioner’s Medicare enrollment application, with retrospective billing privileges beginning January 13, 2020.  CMS Ex. 1 at 1-2.

Petitioner requested a hearing before an administrative law judge (ALJ) on October 13, 2020 (RFH).  This case was assigned to me on November 2, 2020 and an Acknowledgment letter and my Standing Order (Standing Order) were issued at my direction.

On December 1, 2020, CMS filed a motion for summary judgment (CMS Br.) and CMS Ex. 1.  On January 7, 2021, Petitioner filed a response (P. Br.) to the CMS motion.  On January 21, 2021 CMS waived its right to file a reply.  Petitioner has not objected to my consideration of CMS Ex. 1, which is admitted as evidence.

II.       Discussion

**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)).  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,

**Page 3**

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 physicians, nonphysician practitioners, and physician and nonphysician practitioner organizations, such as Petitioner, is governed by 42 C.F.R. § 424.520(d).  The effective date of enrollment for physicians, nonphysician practitioners, or physician and nonphysician practice groups may only be the later of two dates:  (1) the date of receipt of the 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 physicians, nonphysician practitioners, or physician and nonphysician practice groups first began providing services at a new practice location.  42 C.F.R. § 424.520(d)*.*  An enrolled physician, nonphysician practitioner, or a physician or nonphysician group 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.  42 C.F.R. § 424.521(a)(2).

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 or supplier’s effective date of 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.

**Page 4**

**Issues**Whether summary judgment is appropriate, and

Whether Petitioner’s effective date for Medicare enrollment is February 12, 2020, with retrospective billing privileges beginning January 13, 2020.

**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.

**Summary judgment is appropriate.******The material facts, including the date the MAC received Petitioner’s enrollment application and the date of the MAC’s initial determination, are undisputed. Based on the undisputed facts, 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 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 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.  Standing 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).

**Pursuant to 42 C.F.R. § 424.520(d), Petitioner’s effective date of Medicare enrollment is February 12, 2020, the undisputed date of receipt of Petitioner’s Medicare enrollment application by the MAC (CMS-855B).****Page 5**

**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 the effective date of his Medicare enrollment, which is January 13, 2020.****Undisputed Facts**It is not disputed that on February 12, 2020, the MAC received Petitioner’s application to enroll in Medicare.  CMS Ex. 1 at 10; RFH; P. Br.  The application was approved by the MAC on April 3, 2020 (the initial determination), and the MAC identified January 13, 2020, as the effective date of Petitioner’s billing privileges.  CMS Ex. 1 at 8.

On September 15, 2020, the MAC issued a reconsidered determination.  The reconsidered determination concluded that the effective date of Petitioner’s Medicare enrollment and billing privileges is February 12, 2020, the date the MAC received the Petitioner’s enrollment application.  The reconsidered determination also concluded that Petitioner was entitled to a 30-day period for retrospective billing beginning January 13, 2020.  CMS Ex. 1 at 2.

I accept as true for purposes of summary judgment that Petitioner began providing services to Medicare-eligible beneficiaries on about October 1, 2019.  I further accept as true that he filed claims with Medicare for services rendered from on about October 1, 2019, through about January 12, 2020, as well as the other allegations in his request for reconsideration, request for hearing, and his brief.  CMS Ex. 1 at 5; RFH; P. Br.

**Analysis**Petitioner requests that he be permitted to bill Medicare for services rendered to Medicare-eligible beneficiaries beginning on about October 1, 2019 through about January 12, 2020, in the amount of roughly $6,000.  RFH, P. Br., CMS Ex. 1 at 5.  I have no authority to grant Petitioner’s request.

The regulation controlling the effective date of enrollment of physicians, nonphysician practitioners, and physician or nonphysician practice groups is 42 C.F.R. § 424.520(d).  The effective date of enrollment and billing privileges for a physician or nonphysician practitioner or a physician or nonphysician practice group may only be the **later** of two dates:  (1) the date when the physician, nonphysician practitioner, or group 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

**Page 6**

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).

I accept as true for purposes of summary judgment that Petitioner treated Medicare-eligible beneficiaries between about October 1, 2019, through about January 12, 2020.  However, there is no dispute that the MAC did not receive Petitioner’s enrollment application that it processed to completion until February 12, 2020.  CMS Ex. 1 at 10, P. Br., RFH.  Petitioner does not allege and offers no evidence from which I may infer that the MAC received his application before February 12, 2020.  Accordingly, the effective date of Petitioner’s enrollment in Medicare and billing privileges can be no earlier than February 12, 2020.  Pursuant to 42 C.F.R. § 424.520(d), it is the later of the date that the MAC received the application it processed to approval or the date on which services were first provided to patients.  Petitioner began providing services to Medicare-eligible beneficiaries on October 1, 2019.  However, he did not file his application until February 12, 2020.  Because February 12, 2020 is the later of the two dates, the regulation requires that it be the effective date of Petitioner’s enrollment and billing privileges.

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,**or** up to 90 days prior only in case of a Presidentially-declared disaster pursuant to 42 U.S.C. §§ 5121-5207, the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act).  42 C.F.R. §§ 424.521(a)(1), (2).  There is no dispute that President Donald J. Trump issued an emergency declaration under the Stafford Act on March 13, 2020, nearly a month after the MAC’s initial determination in Petitioner’s case.  On reconsideration the MAC did not specifically address whether the Stafford Act declaration had any impact in this case.  I conclude the declaration does not apply to permit Petitioner a 90-day period for retrospective billing.

Petitioner argues that he treated Medicare-eligible beneficiaries between about October 1, 2019 through about January 12, 2020, providing ophthalmologic services other physicians were hesitant to provide.  Petitioner states that he felt obligated to treat those patients he had already seen, believing in good faith that Medicare would pay him.  He argues that he had to close his practice for three months during 2020 due to the pandemic, and that the loss of $6,000 in revenue for claims from October 2019 to January 2020 is a financial hardship.  CMS Ex. 1 at 5, RFH; P. Br.  I accept Petitioner’s assertions as true for purposes of summary judgment.  However, as explained, the regulation requires that Petitioner’s effective date of Medicare enrollment and billing privileges be the date that the MAC received his enrollment application that could be processed to completion.

**Page 7**

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).  As the Board stated in *Sentinel Medical Laboratories, Inc.*,

It is well established that administrative forums, such as this Board and the Department’s ALJs, do not have the authority to ignore unambiguous statutes or regulations on the basis that they are unconstitutional.  A legislative rule is binding on the agency that issues it.  1 Kenneth Culp Davis and Richard J. Pierce, Jr., *Administrative Law Treatise*, § 6.5 (3rd ed. 1994), (citing *U.S. v. Nixon*, 418 U.S. 683 (1974) (where the court noted that the executive branch was bound by the terms of a regulation it had issued, even though it was within its power to change that regulation).  Federal courts have refused “to recognize in administrative officers any inherent power to nullify legislative [or executive] enactments because of personal belief that they contravene the [C]onstitution.”  *Gibas v. Saginaw Mining Co.*, 748 F.2d 1112, at 1117 (6th Cir. 1984) (citation omitted).  Thus, courts have noted that challenges to the constitutionality of an agency regulation lie outside the cognizance of that agency, and that generally, an ALJ is bound by the regulations promulgated by his administrative agency.  *Howard v. FAA*, 17 F.3d 1213, 1218 (9th Cir. 1994); *Stieberger v. Heckler*, 615 F.Supp. 1315, 1386 (S.D.N.Y. 1985), citing *D’Amico v. Schweiker*, 698 F.2d 903 (7th Cir. 1983).

*Sentinel Med. Labs., Inc.*, DAB No. 1762 at 9 (2001), *aff’d sub nom., Teitelbaum v. Health Care Fin. Admin.*, 32 F. App’x 865 (9th Cir. 2002).

Petitioner’s concern about financial hardship due to his unpaid claims to Medicare for services delivered from October 2019 to January 2020 is understandable.  However, Petitioner has no right to ALJ review in this forum of the denial of payment of claims by Medicare.  *Urology Grp. of NJ, LLC*, DAB No. 2860 at 6-7 (2018).  Furthermore, I have no authority to grant Petitioner equitable relief in the form of an earlier effective date of enrollment to permit the payment of his claims, even if I were inclined to do so.  *US Ultrasound*, DAB No. 2302 at 8 (2010).

**Page 8**

III.     Conclusion

For the foregoing reasons, the effective date of Petitioner’s Medicare enrollment and billing privileges is February 12, 2020, with a period for retrospective billing beginning January 13, 2020.


          /s/
        Keith W. Sickendick

                      Administrative Law Judge
      1. The following discussion clarifies that January 13, 2020, is the first day of a 30-day period for retrospective billing and the effective date of Medicare enrollment of Petitioner is actually February 12, 2020, the date the MAC received his enrollment application.  back to note 1
                      2. Petitioner, a physician, 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 2019 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.  The Board also 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 Back to top
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