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                              David D. Park, MD, DAB CR5755 (2020)
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David D. Park, MD, DAB CR5755 (2020)








  
  
    

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





David D. Park, MD
(NPI: 1114986569 / PTAN: G074150956),
Petitioner,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-19-791Decision No. CR5755November 2, 2020

        
              
    

      DECISION

Petitioner reassigned his right to file claims with and receive payment from Medicare to Park Surgical Specialists, LLC (Park Surgical), Petitioner’s practice group, effective October 2, 2018, with retrospective billing pursuant to the reassignment permitted beginning September 2, 2018.

I.  Procedural History

Palmetto GBA, a Medicare administrative contractor (MAC), notified Petitioner by letter dated November 15, 2018, that Petitioner’s Medicare application to reassign his right to file claims with and receive payment from Medicare to Park Surgical was approved.  The MAC notice stated that the effective date of the reassignment was September 2, 2018.  Centers for Medicare & Medicaid Services (CMS) Exhibits (Exs.) 1 at 19; 2 at 1.  As discussed hereafter, September 2, 2018, was not the effective date of the reassignment but, rather, the first date of the period authorized for retrospective billing.

Petitioner requested a reconsidered determination by letter dated November 26, 2018.  CMS Ex. 1 at 8-9.  On March 9, 2019, the MAC notified Petitioner that the reconsidered determination upheld the initial determination of the effective date of reassignment.  The reconsidered determination also erroneously identified September 2, 2018, as the

Page 2

effective date of reassignment rather than the first day of the period for retrospective billing.  CMS Ex. 1 at 3.

Petitioner requested a hearing before an administrative law judge (ALJ) by letter postmarked May 7, 2019 (RFH).  On May 21, 2019, the case was assigned to me and an Acknowledgement and Prehearing Order (Prehearing Order) was issued at my direction.

CMS filed a motion for summary judgment (CMS Br.) with CMS Exs. 1 through 4 on June 20, 2019.  Petitioner filed a response (P. Br.) on June 26, 2019, with Petitioner’s exhibit (P. Ex.) 1.  CMS waived a reply brief on August 7, 2019.  No objections have been made to my consideration of CMS Exs. 1 through 3 or P. Ex. 1.  CMS Exs. 1, 2, and 3 and P. Ex. 1 are admitted and considered as evidence.  CMS Ex. 4 is an electronic application for Park Surgical filed using the CMS Provider Enrollment, Chain, and Ownership System received by the MAC on August 16, 2018.  CMS Ex. 4 at 2.  The effective date of Park Surgical’s enrollment is not at issue before me and the application offered as CMS Ex. 4 is not relevant and is not admitted.

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.1
  Act §§ 1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395(u)(h)(1)).  Administration of the Part B program is through the MACs.  Act § 1842(a) (42 U.S.C. § 1395u(a)).

Page 3

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. § 424.505,2
 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 Medicare beneficiary, one who is entitled to benefits under Medicare Part A or enrolled under Part B, is the individual covered by Medicare and entitled to request payment for Medicare-covered health care items and services.  Act § 1802.  The assignment of the right to file a claim for Medicare coverage of health care charges from a Medicare beneficiary to a Medicare-enrolled provider or supplier is limited.  The reassignment of the right to file a Medicare claim from an enrolled provider or supplier to another is very limited.  42 C.F.R. pt. 424, subpt. F.  Reassignment to an employer is permitted from a supplier, such as a physician, when reassignment is required as a condition of employment.  42 C.F.R. § 424.80(b)(1).  Reassignment to an entity that bills for a supplier’s services pursuant to a contractual arrangement is also permitted.  42 C.F.R. § 424.80(b)(2) and (5).

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 sections 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.  Appeal and review rights in provider and supplier cases are specified by 42 C.F.R. §§ 424.545 and 498.5.

Page 4

**B.  Issues**

Whether I have jurisdiction to review the determination by CMS or a MAC of the effective date of reassignment of the right to file claims with and to receive payment from Medicare;

Whether summary judgment is appropriate; and

The effective date of reassignment.

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

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

**1.  There is authority for me to conduct review in this case.**

Petitioner seeks review of the MAC’s reconsidered determination of the effective date of the reassignment of Petitioner’s right to file claims with and obtain payment from Medicare for care and services delivered to Medicare-eligible beneficiaries.

The Secretary promulgated the regulations at 42 C.F.R. §§ 424.545 and 498.5 that specify review and appeal rights in provider and supplier cases.  The Secretary has not specifically stated that a supplier has a right to ALJ review of a CMS or MAC determination related to reassignment of the right to file claims with and receive payment from Medicare, including the effective date of reassignment.  42 C.F.R. §§ 424.70-.90, 424.545, 498.3(b), 498.5.  However, 42 C.F.R. § 498.3(b)(15) provides that “[t]he effective date of a Medicare provider agreement or supplier approval” is an  initial determination.  The Board has given an expansive interpretation to 42 C.F.R. § 498.3(b)(15) and found a right to ALJ review of the effective date of enrollment in Medicare; the effective date of the reactivation of billing privileges; and the effective date of the reassignment of the right to file claims with and receive payment from Medicare.  *See, e.g., Victor Alvarez, M.D.*, DAB No. 2325 at 3-10 (2010) (determination of effective date of enrollment in Medicare is an initial determination subject to ALJ review and Board appeal); *Urology Grp. of NJ, LLC*, DAB No. 2860 at 6 (2018) (no right to review of a CMS or MAC determination to deactivate billing privileges but right to review of the determination of the effective date of reactivation); *Gaurav Lakhanpal, MD*, DAB No. 2951 (2019) (upholding ALJ review of challenge to effective date of reassignment).  The only determination of CMS or the MAC that is subject to my review in a provider and supplier case, such as this, is the reconsidered determination.  *See* 42 C.F.R. § 498.5(*l*)(1)-(2); *Neb Grp. of Ariz.*, DAB No. 2573 at 7.

Page 5

**2.  Summary judgment is appropriate.**

I have concluded that Petitioner has a right to ALJ review of the reconsidered determination of the effective date of reassignment of his right to file claims with and receive payment from Medicare.  A hearing on the record before an ALJ is required under the Act.  Act §§ 205(b), 1866(h)(1), (j); *Crestview Parke Care Ctr. v. Thompson*, 373 F.3d 743, 748-51 (6th Cir. 2004).  The procedures governing hearings in provider and supplier enrollment cases are at 42 C.F.R. pt. 498.  A party may waive appearance at an oral hearing but must do so affirmatively in writing.  42 C.F.R. § 498.66.  Petitioner has not waived oral hearing.

CMS filed a motion for summary judgment.  Petitioner opposes the motion for summary judgment arguing there is a genuine dispute of material fact.  P. Br. at 1.  Summary judgment is not automatic but is limited to certain specific conditions.  The regulations do not establish or recognize a summary judgment procedure.  However, 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 also recognized that the Federal Rules of Civil Procedure do not apply in administrative adjudications such as this, but the Board has accepted that Fed. R. Civ. P. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate.  Furthermore, a summary judgment procedure was adopted as a matter of judicial economy within my authority to regulate the course of proceedings and made available to the parties in the litigation of this case by my Prehearing Order.  The parties were given notice by the Prehearing Order that summary judgment is an available procedural device and that the law as it has developed related to Fed. R. Civ. P. 56 will be applied.  Prehearing Order ¶¶ II.D. & G.  The parties were advised that a fact alleged that is not specifically denied may be accepted as true for purposes of summary judgment.  The parties were also advised that evidence will be considered admissible and true, unless specific objection is made to its admissibility and accuracy.  Prehearing Order ¶ II.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.  In determining whether there are genuine issues of material fact for trial, the reviewer must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor.  The party requesting summary judgment bears the burden of showing that there are no genuine issues of material fact for trial and/or that it is entitled to judgment as a matter of law.  Generally, the non-movant may not defeat an adequately supported summary judgment motion by relying upon the denials in its pleadings or briefs but must furnish evidence of a dispute concerning a material fact, i.e., a fact that would affect the outcome of the case if proven.  *See* *Anderson v. Liberty Lobby, Inc.*, 477 U.S. 242, 248 (1986); *Mission Hosp. Reg’l Med.*

Page 6

*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).

The standard for deciding a case on summary judgment and an ALJ’s decision-making in deciding a summary judgment motion differs from that used in resolving a case after a hearing.  On summary judgment, the ALJ does not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence, as would be done when finding facts after a hearing on the record.  Rather, on summary judgment, the ALJ construes the evidence in a light most favorable to the non-movant and avoids deciding which version of the facts is more likely true.  *Holy Cross Vill. at Notre Dame, Inc.*, DAB No. 2291 at 5 (2009).  The Board also has recognized that on summary judgment it is appropriate for the ALJ to consider whether a rational trier of fact could find that the party’s evidence would be sufficient to meet that party’s evidentiary burden.  *Dumas Nursing & Rehab**.**, L.P.*, DAB No. 2347 at 5 (2010).  The Secretary has not provided in 42 C.F.R. pt. 498 for the allocation of the burden of persuasion or the quantum of evidence required to satisfy the burden.  However, the Board has provided some persuasive analysis regarding the allocation of the burden of persuasion in cases subject to 42 C.F.R. pt. 498.  *Batavia Nursing & Convalescent Ctr.*, DAB No. 1904 (2004), *aff’d*,*Batavia Nursing & Convalescent Ctr. v. Thompson*, 129 F. App’x 181 (6th Cir. 2005).

In this case, I conclude that Petitioner has failed to show that there is a genuine dispute as to any material fact as discussed hereafter pertinent to determination of the correct effective date of Petitioner’s reassignment of his right to file claims with and receive payment from Medicare.  The facts are undisputed and CMS is entitled to judgment as a matter of law.  Accordingly, I conclude that summary judgment is appropriate.

**3.  The effective date of Petitioner’s reassignment of his right to file claims with and receive payment from Medicare, which is determined pursuant to 42 C.F.R. § 424.520(d), is October 2, 2018.**

**4.  The beginning of the period of retrospective billing privileges on the reassigned claims, which is determined pursuant to 42 C.F.R. § 424.521(a)(1), is September 2, 2018.**

**5.  There is no right to ALJ review of the rejection of an enrollment application.  42 C.F.R. § 424.525(d).**

**a.  Undisputed Facts**

The parties were advised in the Prehearing Order ¶ II.G that, for purposes of ruling on a motion for summary judgment, a fact alleged and not specifically denied would be

Page 7

accepted as true, and offered evidence would be considered admissible and true absent a specific objection.  The following findings of fact are based upon the undisputed or conceded facts.  I do not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence in deciding a summary judgment motion.  The evidence is viewed in the light most favorable to Petitioner, the nonmovant, with all inferences drawn in Petitioner’s favor.

Petitioner was enrolled in Medicare prior to reassigning to Park Surgical his right to file claims with and receive payment from Medicare.  CMS Br. at 5.

Petitioner states that on December 29, 2017, he sent Medicare enrollment applications (CMS-855) to multiple MACs and CMS with a requested enrollment effective date of February 1, 2018.  RFH at 1; P. Br. at 2; P. Ex. 1.  Petitioner states that on September 24, 2018, the applications initially submitted by mail on December 29, 2017, were rejected by the MACs because they were the wrong forms.  P. Br. at 2.3
  I accept both statements as true for purposes of summary judgment.

Petitioner states that Park Surgical began providing services to Medicare-eligible beneficiaries on about February 1, 2018.  Petitioner also asserts he had the understanding that enrollment would “retroactively be effective” February 1, 2018.  RFH at 1.  I accept both assertions as true for purposes of summary judgment.  I note that Petitioner does not assert that anyone at the MAC or CMS told him that Petitioner’s enrollment would be effective retroactive to February 1, 2018.

Page 8

It is not disputed that on October 2, 2018, the MAC received from Petitioner Petitioner’s completed CMS-855R, the Medicare enrollment application used to request or terminate a reassignment.  P. Br. at 2; CMS Br. at 3; CMS Ex. 3.

On November 15, 2018, the MAC notified Petitioner that his reassignment to Park Surgical was approved with an effective date of September 2, 2018.  CMS Ex. 1 at 19; CMS Ex. 2.

**b.  Analysis**

Petitioner requests that the effective date of his reassignment to Park Surgical be changed to February 1, 2018.  Petitioner requests the change so that claims for services he provided to Medicare-eligible beneficiaries between February 1 and September 2, 2018, can be paid by Medicare.  RFH at 1; P. Br. at 3.  Petitioner’s request must be denied based on application of the law to the undisputed facts.

In *Lakhanpal*,the Board found that the effective date of a reassignment is determined pursuant to 42 C.F.R. § 424.520(d).  *Lakhanpal*, DAB No. 2951 at 6.  The regulation provides:

(d) *Physicians, non-physician practitioners, physician and non-physician practitioner organizations, and ambulance suppliers.*  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

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

42 C.F.R. § 424.520(d) (italics in original).  The date of filing is the date the MAC received an application it processes to approval.  73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008); *Alexander C. Gatzimos, MD, JD, LLC*, DAB No. 2730 at 5 (2016).

Petitioner asserts he began providing services through Park Surgical on about February 1, 2018.  Petitioner does not dispute that the applications filed by mail in December 2017, were rejected by the MAC in September 2018, and not processed to approval by the MAC.  There is no dispute that on October 2, 2018, the MAC received the application it processed to approval, reassigning Petitioner’s right to file claims with and receive payment from Medicare to Park Surgical.  The MAC received the application it processed

Page 9

to approval on October 2, 2018, which is later than the date Petitioner began providing services on about February 1, 2018.  Accordingly, applying the regulation to the undisputed facts, the effective date of Petitioner’s reassignment to Park Surgical may only be October 2, 2018.

A 30-day period of retrospective billing for physicians, non-physician practitioners, physician and non-physician practitioner organizations, and ambulance suppliers is authorized “if circumstances precluded enrollment in advance of providing services to Medicare beneficiaries.”  42 C.F.R. § 424.521(a)(1).  A 90-day period for retrospective billing is authorized in the event of a disaster declaration by the President that precluded earlier filing, which is not applicable in this case.  42 C.F.R. § 424.521(a)(2).  Accordingly, September 2, 2018, is the first day of the period for retrospective billing based on Petitioner’s reassignment to Park Surgical effective October 2, 2018.

Petitioner argues that the MAC failed to comply with CMS processing guidelines (CMS Ex. 1 at 14-18) in processing the applications Petitioner filed by mail in December 2017.  Petitioner argues that he first learned of problems with the applications when they were rejected by the MAC on September 24, 2018.  He reasons that if he had been timely notified of the problems he could have corrected the applications or filed the correct applications before February 1, 2018, or within 30 days thereafter, and not been deprived of the ability to receive payment from Medicare for the period between February 1 and September 2, 2018.  RFH at 1; P. Br. at 2-3; CMS Ex. 1 at 7-9.  While I am sympathetic to Petitioner’s plight, Petitioner has no right to review of the rejection of the December 2017 applications and I have no authority to conduct review of the rejection or its timing.  42 C.F.R. § 424.525(d); *Lakhanpal*, DAB No. 2951 at 2, 7.  To the extent Petitioner’s arguments may be construed to request equitable relief, I simply have no authority to grant such relief.  *US Ultrasound*, DAB No. 2302 at 8 (2010).  I am also required to follow the Act and regulations and have no authority to declare statutes or regulations invalid.  *1866ICPayday.com, L.L.C.*, DAB No. 2289 at 14 (2009).

III.  Conclusion

For the foregoing reasons, I conclude that Petitioner reassigned his right to file claims with and receive payment from Medicare to Park Surgical effective October 2, 2018, with retrospective billing pursuant to the reassignment permitted beginning September 2, 2018.


          /s/
        Keith W. Sickendick

                      Administrative Law Judge
      1. Petitioner 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 1
                      2. Citations are to the 2018 revision of the Code of Federal Regulations (C.F.R.), which was in effect at the time of the initial determination, 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).  In this case, the regulations did not change between the issuance of the initial and reconsidered determinations.  Any citations to earlier revisions of the regulations in this decision do not affect my conclusions of law in this case but are used to show the legal standard in effect at pertinent times. back to note 2
                      3. I note that the MAC letter dated September 24, 2018, submitted by Petitioner with his request for reconsideration, indicates that an enrollment application received by the MAC on July 16, 2018, was rejected for failure to submit requested corrections.  However, that letter indicates that the rejected application was a CMS-855B application for the enrollment of Park Surgical, not Petitioner’s reassignment application.  CMS Ex. 1 at 10.  Petitioner explained in his request for hearing that in the fall of 2018, Petitioner learned that a CMS-855B should have been submitted for Park Surgical and a CMS-855R should have been submitted for each physician.  RFH at 1.  Petitioner also states that when an inquiry was made to the MAC, the MAC denied receiving any enrollment applications until July 16, 2018.  RFH at 1.  The evidence is not in conflict with Petitioner’s assertions that applications submitted in December 2017 were rejected on September 24, 2018.  To the extent that there may be a conflict, I draw all inferences on summary judgment in Petitioner’s favor as the nonmovant.  Further, as discussed hereafter, I have no authority to review the rejection of an enrollment application.  The rejection of Petitioner’s December 2017 applications is not material because facts related to the rejection have no effect on the outcome in this case. back to note 3 Back to top
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