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                              Timothy Onyiuke, M.D., DAB No. 3092 (2023)
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Timothy Onyiuke, M.D., DAB No. 3092 (2023)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Appellate Division





Timothy Onyiuke, M.D.
Docket No. A-20-98Decision No. 3092March 14, 2023

        
              
    

      FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE DECISION

Timothy Onyiuke, M.D. (Petitioner) appeals the June 8, 2020 decision of an Administrative Law Judge (ALJ), captioned *Timothy Onyiuke, MD*, DAB CR5629 (ALJ Decision).  The ALJ upheld by summary judgment the determination of the Centers for Medicare & Medicaid Services (CMS) that the reassignment date of Petitioner’s Medicare billing privileges to Skilled Facility Health Care Solutions, Inc. (Skilled) was August 8, 2018, with retrospective billing permitted beginning July 9, 2018.  We affirm the ALJ Decision for the reasons stated below.

Legal Background

Under the Social Security Act (Act), the Department of Health and Human Services administers the Medicare program through CMS and administrative contractors.  Act §§ 1816, 1842, 1874A.  A physician or other “supplier” must be enrolled in the Medicare program to receive payment from the program for covered items or services.  *Id.*§ 1861(d); 42 C.F.R. §§ 400.202, 424.500, 424.505.

To enroll, a supplier must complete and submit to CMS the applicable enrollment application or an approved electronic submission.  42 C.F.R. §§ 424.502, 424.510(a)(1), (d)(1).  The enrollment process includes identifying the supplier, validating the supplier’s eligibility to provide items or services to Medicare beneficiaries, identifying and confirming the supplier’s practice location, and granting the supplier Medicare billing privileges.  *Id*. § 424.502.

Reassignment of a supplier’s Medicare billing privileges is permitted only in specified circumstances and requires submission of the appropriate enrollment application.  42 C.F.R. § 424.80(a), (b);*see also*71 Fed. Reg. 20,754, 20,756, 20,767 (Final Rule) (Apr. 21, 2006).  CMS has created several standard-form enrollment applications for different enrollment types, including Forms CMS-855B (for “Clinics/Group Practices and Other Suppliers”), CMS-855I (for “Physicians and Non-Physician Practitioners”), and CMS-855R (for “Reassignment of Medicare Benefits”).  71 Fed. Reg. at 20,756, 20,767.

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Approval of a Medicare enrollment application is essential to determining the effective date of a supplier’s billing privileges.  Under 42 C.F.R. § 424.520(d), the “effective date of billing privileges” is the later of either “[t]he date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor” or “[t]he date that the supplier first began furnishing services at a new practice location.”1  CMS explained, in the preamble to the rulemaking that promulgated section 424.520, that the term “date of filing” means the date that the Medicare contractor receives a signed Medicare enrollment application that the Medicare contractor is able to process to approval.  73 Fed. Reg. 69,726, 69,766-67 (Final Rule) (Nov. 19, 2008).  Suppliers who have “met all program requirements” may “retrospectively bill” Medicare for services for up to “[t]hirty days prior to their effective date if circumstances precluded enrollment in advance of providing services to Medicare beneficiaries.”  42 C.F.R. § 424.521(a)(1).  This 30-day period is commonly called the retrospective billing period.2

CMS publishes the Medicare Program Integrity Manual (MPIM) for use by CMS components and contractors in administering CMS programs, *see Yolanda Hamilton, M.D.*, DAB No. 3061, at 26 n.22 (2022), including performance of provider and supplier enrollment functions.3  Effective December 19, 2016, new MPIM section 15.5.20.E.3 stated:

If the Form CMS-855R is accompanied by an initial Form CMS-855I or submitted as a “stand-alone” form (that is, a Form CMS-855R is submitted as a new reassignment, such as when an enrolled physician who is operating as a sole proprietor joins a group practice and reassigns his benefits to the group), the effective date of the enrollment and the reassignment shall be consistent with the 30-day rule (i.e., *the later of the*

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*date of filing or the date the reassignor first began furnishing services at the new location*) specified in section 15.17 of this chapter.

CMS Pub. 100-08, Transmittal 676, “Clarification of Certain Policies in Pub. 100-08, Chapter 15 Regarding the Processing of Form CMS-855R Applications,” available at https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/2016-Transmittals-Items/R676PI(last accessed Mar. 6, 2023) (emphasis added).  The cross-referenced MPIM provision, section 15.17, specified the rule for establishing effective dates “[i]n accordance with 42 CFR § 424.520(d),” and for retrospective billing dates “[c]onsistent with 42 CFR § 424.521(a).”  *Id.*

The effective date of a supplier’s billing privileges is among the specified “initial determinations” subject to administrative review under 42 C.F.R. Part 498.  *See* 42 C.F.R. §§ 498.3(a)(1), (b)(15), 498.5(*l*); *Victor Alvarez, M.D.*, DAB No. 2325, at 3 (2010).  A dissatisfied supplier may request a “reconsidered determination” of the effective date from CMS or its contractor, then a hearing on the reconsidered determination before an ALJ, then review of the ALJ’s decision by the Board.  *See*42 C.F.R. § 498.5(*l*)(1)-(3).  However, the rejection of an enrollment application is not an “initial determination” subject to ALJ and Board review under 42 C.F.R. Part 498.  *See*42 C.F.R. § 424.525(d).

Case Background4

Petitioner is a Maryland-licensed specialist in general surgery who provides Medicare-eligible services in Maryland and Washington, D.C.  ALJ Decision at 7; CMS Ex. 1, at 9, 14; CMS Prehearing Exch. & Mot. For Summ. J. at 2-3 (stating undisputed facts); P. Prehearing Exch. at 1 (acknowledging undisputed facts).  Petitioner joined Skilled as a participating provider on January 8, 2018.  P. Req. for Hearing by ALJ (RFH) at 1.  On February 2, 2018, the CMS contractor Novitas Solutions (Novitas) issued notice of approval of Petitioner’s reassignment of Medicare benefits to Skilled, with an effective date of January 8, 2018.  ALJ Decision at 7; P. Ex. C at 1-2 (August 9, 2018 notice correcting February 2, 2018 initial determination).5

Skilled initially requested Petitioner’s enrollment in Medicare under two enrollment locality codes for Maryland but was unaware that, for the purpose of Medicare enrollment, some areas in Maryland fall under a District of Columbia (D.C.) locality code.  RFH at 1.  Consequently, when Skilled submitted claims for Medicare reimbursement for certain services that Petitioner had performed, Skilled received denials

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indicating that the claims had a “Missing/incomplete/invalid service facility primary address.”  ALJ Decision at 7; P. Ex. E at 3.  Skilled then electronically filed new application and reassignment forms (Forms CMS-855I and CMS-855R, respectively) on Petitioner’s behalf, using a D.C. locality code that includes certain parts of Maryland.  ALJ Decision at 7; RFH at 1; CMS Ex. 1, at 13-18; P. Ex. A; P. Ex. B at 2.  Novitas received Petitioner’s Forms CMS-855I and CMS-855R on August 8, 2018.  CMS Prehearing Exch. & Mot. For Summ. J. at 2; CMS Ex. 1, at 2, 13, 15, 17.

On August 27, 2018, Novitas issued an initial determination approving Petitioner’s reassignment of benefits to Skilled with an “Effective Date” of July 9, 2018.  P. Ex. D; CMS Ex. 1, at 8-11.  Skilled timely requested a reconsidered determination on Petitioner’s behalf.  ALJ Decision at 1; CMS Ex. 1, at 5-7.

In a reconsidered determination dated November 15, 2018, Novitas clarified that, “[b]ased on the web CMS-855I and web CMS-855R initial enrollment applications being received on August 8, 2018, the effective date of Medicare billing privileges is August 8, 2018,” with a retrospective billing date of July 9, 2018.  P. Ex. B; CMS Ex. 1, at 2.  Novitas otherwise affirmed its initial determination, relying upon 42 C.F.R. §§ 424.520(d) and 424.521(a) and the undisputed receipt on August 8, 2018, of Petitioner’s electronically submitted CMS-855I and CMS-855R applications.  P. Ex. B; CMS Ex. 1, at 1-3.

Petitioner timely requested an ALJ hearing, seeking a change in effective date from July 9, 2018, to January 8, 2018.  ALJ Decision at 2; RFH at 1.  Petitioner also asked that claims be processed under the pay schedule for a D.C. locality code.  RFH at 2; P. Ex. A.  Petitioner stated that “a genuine and unintentional misunderstanding of intricate CMS locality information and delayed Medicare Contractor response” had caused a six-month gap in billing privileges, which**imposed “a significant burden” due to “a simple procedural misunderstanding and delayed denial of electronic claims enrollment.”  RFH at 1.

CMS moved for summary judgment, arguing that CMS correctly determined Petitioner’s effective date under the governing regulations and that Petitioner is not entitled to equitable relief.  CMS Prehearing Exch. & Mot. For Summ. J. at 1-2.  CMS asserted that the regulations did not directly address the effective date for reassignment, but the MPIM did by specifying that the effective date shall be “the later of the date of filing or the date the reassignor first began furnishing services at the new location.”  *Id.* at 5-6 (quoting MPIM § 15.5.20.E.3).  CMS further contended that “the ALJ and DAB lack the authority to provide for equitable reimbursement in these cases.”  *Id.* at 6.  CMS submitted one multi-part exhibit and no witness testimony.  ALJ Decision at 2; CMS Ex. List at 1.

Petitioner filed a response brief and second hearing request, which did not dispute CMS’s account of the enrollment history or attach any documentary or testimonial evidence to

Page 5

support Petitioner’s position.  ALJ Decision at 2; P. Prehearing Exch. at 1 (stating that Skilled “is not disputing the items mentioned under the section ‘I. STATEMENT OF UNDISPUTED MATERIAL FACTS’ in the Pre-Hearing Exchange filed by CMS”).  Petitioner admitted that Skilled did not timely file Petitioner’s enrollment forms “due to a misunderstanding on our part,” which they attributed to “the unreasonable difficulty in deciphering enrollment information presented by CMS (or its Contractor) to the public.”  P. Prehearing Exch. at 1-2.  Petitioner referenced the Medicare Administrative Contractor Beneficiary and Provider Communications Manual, but did not submit any portion of it as an exhibit.  *Id.*at 2-3.  Petitioner’s sole citation to the record stated that “Exhibit A” to Petitioner’s Request for Hearing, consisting of two spreadsheet pages, demonstrated that information presented by CMS or Novitas “is not easily found or easily searchable.”  *Id.* at 3-4.  These issues purportedly entitled Petitioner, who had “demonstrated good faith,” to a civil remedy for negligent misrepresentation.  *Id.* at 4-6.  CMS waived filing of a reply brief.  ALJ Decision at 2.

The ALJ entered summary judgment in favor of CMS per the applicable legal standard, concluding that “Petitioner has failed to show that there is a genuine dispute as to any material fact” and “CMS is entitled to judgment as a matter of law.”  *Id.* at 6.  The ALJ opined that the “regulations do not specify how to determine an effective date for an authorized reassignment,” but “CMS has addressed the determination of the effective date of a reassignment by policy or interpretive rules in effect at the time of the reconsidered determination.”  *Id.* at 8.  Specifically, the ALJ relied on MPIM §§ 15.5.20.E.3 and 15.17, which “incorporate[] the provisions of 42 C.F.R. §§ 424.520(d) and 424.521(a), the regulations that govern determination of the effective date of enrollment and authorized period of retrospective billing for physicians” and other suppliers.  *Id.* at 8-9.  The ALJ stated that August 8, 2018 (the undisputed filing date of the relevant application) is later than January 8, 2018 (the undisputed date when Petitioner first began providing services with Skilled).6  *Id.* at 9.  By “straightforward” application of the regulations to the undisputed facts, the ALJ concluded that the effective date of Petitioner’s reassignment to Skilled “may only be August 8, 2018,” with retrospective billing permissible beginning July 9, 2018.  *Id*.  The ALJ characterized Petitioner’s arguments that Medicare is complicated and jurisdictional boundaries can be unclear as “correct,” but “not grounds for relief” because the ALJ lacked authority to grant equitable relief or fashion a civil remedy, including a remedy for negligent misrepresentation.  *Id.*  The ALJ also concluded that, in any event, the record showed “no negligent misrepresentation of enrollment requirements or any misconduct that might be

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a basis” for concluding equitable estoppel could apply.  *Id.* at 10.

This appeal followed.

Standard of Review

“Whether summary judgment is appropriate is a legal issue that we review *de novo*.”  *Blair Allen Nelson, M.D.*, DAB No. 3024, at 6 (2020).  “In evaluating a party’s motion for summary judgment, we view the record in the light most favorable to the non-moving party and giving that party the benefit of all reasonable inferences.”  *A Samuel’s* *Christian Home Care*, DAB No. 3043, at 7 (2021).  “Drawing factual inferences in the light most favorable to the non-moving party does not, however, require that a reviewer draw unreasonable inferences or accept the non-moving party’s legal conclusions.”  *Id*.  “Summary judgment is appropriate when the record shows that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.”  *Senior Rehab. & Skilled Nursing Ctr.*, DAB No. 2300, at 3 (2010)), *aff’d sub nom. Senior Rehab. & Skilled Nursing Ctr. v. Health & Hum. Servs.*, 405 F. Appx. 820 (5th Cir. 2010) (per curiam).

“The party moving for summary judgment bears the initial burden of showing that there are no genuine issues of material fact for trial and that it is entitled to judgment as a matter of law.”  *Id.*  Once the movant carries that burden, “the non-moving party may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact – a fact that, if proven, would affect the outcome of the case under governing law.”  *Dumas Nursing & Rehab., L.P.*, DAB No. 2347, at 4 (2010).  “A party may not avoid summary judgment based on conclusory or speculative statements.”  *Id*. at 18*.*

The Board’s standard of review on a disputed issue of law is “whether the ALJ decision is erroneous,” meaning “contrary to law or applicable regulations.”  *Guidelines – Appellate Review of Decisions of Administrative Law Judges Affecting a Provider’s or Supplier’s Enrollment in the Medicare Program (Guidelines)*, “Completion of the Review Process,” ¶ (c), available at https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/guidelines/enrollment/index.html*.*

Analysis

Petitioner contends that the ALJ erroneously granted summary judgment and erred in three ways.  Request for Review (RR) at 1, 4.  First, Petitioner objects that the ALJ did not grant an oral hearing.  *Id.* at 4.  Second, Petitioner argues that the ALJ disregarded disputes of material fact, specifically concerning Petitioner’s arguments that Medicare rules are complicated and the boundary between D.C. and Maryland is not always clear.  *Id.*  Third, Petitioner asserts that the ALJ improperly made credibility determinations and

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weighed or drew inferences from the evidence when concluding that the complexity of Medicare rules and unclear jurisdictional boundaries were not grounds for relief.*Id*. at 1, 4.

CMS, in response, argues that Petitioner was not entitled to a hearing and the ALJ appropriately granted summary judgment for several reasons.  CMS Br. at 5-11.  CMS asserts, first, that the material facts are undisputed, as Petitioner expressly conceded.  *Id.* at 5-8.  Second, CMS contends that the ALJ drew no unreasonable inferences.  *Id.* at 8.  Next, CMS maintains that the ALJ correctly upheld CMS’s determination of the effective date of reassignment based on the applicable regulations, the MPIM, and the undisputed submission date of Petitioner’s application that was processed to completion.  *Id.* at 8-10.  Lastly, CMS posits that the ALJ did not err in denying Petitioner’s request for an earlier effective date, because neither the ALJ nor the Board is authorized to provide equitable relief or to invalidate controlling statutes or regulations.  *Id.* at 10-11.  Accordingly, CMS “requests judgment in its favor, affirming the ALJ’s decision that the effective date given to Petitioner follows applicable regulations.”  *Id.* at 11.

We conclude that the ALJ did not err in granting summary judgment for CMS.  In reaching this decision, we first discuss Petitioner’s contention that the ALJ erred by not holding a hearing.  We then explain our conclusion that the ALJ’s entry of summary judgment for CMS was not erroneous, based upon the undisputed material facts, the applicable law, and the unavailability of equitable relief.

***The ALJ did not err in deciding this matter on summary judgment, without convening a hearing.***As the ALJ acknowledged, “[a] hearing on the record before an ALJ is required under the Act,” ALJ Decision at 5, yet the ALJ also gave the parties due and timely notice that a full evidentiary hearing featuring oral testimony is not required in every case, including this one.  Specifically, the ALJ gave the parties “notice by the Prehearing Order that summary judgment is an available procedural device.”**ALJ Decision at 5; Acknowledgment and Prehearing Order (Prehearing Order) at 3-7.  The ALJ explained to the parties in detail how to submit their evidence and argument for consideration, and how to request and oppose summary judgment.  Prehearing Order at 3-7.  Petitioner had the opportunity to submit new documentary evidence before the ALJ upon showing good cause for not having submitted it previously.  *Id.* at 5, 6 (citing 42 C.F.R. § 498.56(e)).  Petitioner also could submit either a proposed witness list for an oral hearing along with a short summary of expected testimony, or written testimony for the ALJ’s consideration in lieu of oral testimony, or both.  *Id.* at 3, 5.

Despite ample opportunity, Petitioner submitted nothing to the ALJ that precluded summary judgment or established the need for an oral hearing.  In response to CMS’s prehearing exchange and motion for summary judgment, Petitioner submitted no further

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documentary evidence, no proposed witness list for an oral hearing, and no written witness testimony.  *See*P. Prehearing Exch. at 4; ALJ Decision at 2.  Because CMS also presented no testimonial evidence, Petitioner could not and did not claim any need to cross-examine opposing witnesses.  The only basis Petitioner gave for requesting a hearing was a desire “to demonstrate to the Honorable ALJ the website search difficulties” that allegedly resulted in Petitioner’s belated enrollment application filing.  P. Prehearing Exch. at 4 (emphasis omitted).  Yet Petitioner also undercut that same hearing request, and opened the door to summary judgment, by arguing that CMS was “*not* entitled to a hearing,” and by expressly “*not* disputing” CMS’s statement of undisputed material facts.  *Id.* at 1 (emphasis added).  The ALJ accordingly determined that no in-person hearing was needed and proceeded by summary judgment.  ALJ Decision at 6.

Nevertheless, Petitioner now presents to the Board a two-part argument that the ALJ improperly denied a hearing.  One contention is that “Petitioner did not waive oral hearing in writing” under 42 C.F.R. § 498.66.  RR at 4.  Petitioner’s other contention is that “a hearing on the record before an ALJ is required” under sections 205(b) and 1866(h)(1) and (j) of the Act and *Crestview* *Parke Care Ctr. v. Thompson*, 373 F.3d 743, 748-51 (6th Cir. 2004), *vacating and remanding* *Crestview Parke Care Ctr.*,**DAB No. 1836 (2002).  *Id*.

Petitioner implies that he became entitled to an in-person hearing merely by not waiving one in writing and by opposing summary judgment, but that is incorrect.  It is true that 42 C.F.R. § 498.66(a)(1) requires a party who wishes to waive the right to appear and present evidence at a hearing to “file a written waiver with the ALJ.”  However, a petitioner does not acquire an absolute, unqualified right to a hearing merely by not waiving one.  *See* *Sylvie Wamba*, DAB No. 3068, at 8 (2022).  Waiver of the hearing right is only one of several valid grounds for an ALJ’s decision not to conduct a full evidentiary hearing in each case:

[A]n in-person hearing is not required or even meaningful in every case. In some cases, parties waive that right*; in others, no issue of material fact is presented*; and, in some cases, any factual issue is resolved on the face of the written record because the proffered testimony, even if accepted as true, would not make a difference.

*Big Bend Hosp. Corp.*, DAB No. 1814, at 13 (2002) (emphasis added), *aff’d sub nom. Big Bend Hosp. Corp. v. Thompson*, No. 8-02-CA-030 (W.D. Tex. Jan. 2, 2003), *aff’d*, 88 Fed. Appx. 4 (5th Cir. 2004) (per curiam).

In the present case, no hearing was necessary because the evidence the parties presented to the ALJ generated no dispute of material fact.  It is “clear that a hearing is not required if, as happened here, the non-moving party concedes or fails to dispute the material

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facts.”  *Livingston Care Ctr.*, DAB No. 1871, at 7 (2003), *aff’d* *sub nom.* *Livingston Care Ctr. v. United States Dep’t of Health & Hum. Servs.*, 388 F.3d 168 (6th Cir. 2004); *see also Glenburn Home*, DAB No. 1806, at 17 (2002) (“Thus, in reviewing a case where an ALJ failed to either obtain a written waiver or hold an oral hearing, we may nonetheless uphold the decision if the affected party . . . had conceded all of the material facts. . . .”).  Here, Petitioner explicitly conceded CMS’s statement of the material facts, P. Prehearing Exch. at 1, which included information on the two dates relevant to CMS’s determination of the effective date of Petitioner’s reassignment application under the dispositive regulation, 42 C.F.R. § 424.520(d).  *See* CMS Prehearing Exch. & Mot. for Summ. J. at 1-2.  Petitioner also proffered no evidence that could rebut the accuracy of that essential information.  “To convene an in-person hearing where,” as here, “no proffered evidence would have any effect on the outcome would be an empty formalism and a waste of administrative and litigant resources.”  *Big Bend* at 15.  Dispensing with a hearing is particularly appropriate where, as in the present case, neither party “offered any written direct testimony and, accordingly, there was no witness for a party to request to cross-examine.”  *See James Brian Joyner, M.D.*, DAB No. 2902, at 12 (2018).

Petitioner also relies in error on sections 205(b) and 1866(h)(1) and (j) of the Act and *Crestview.*The ALJ acknowledged that sections 205(b) and 1866(h)(1) and (j) of the Act require a “hearing on the record before an ALJ,” ALJ Decision at 5, yet those authorities do not preclude entry of summary judgment without an in-person hearing in an appropriate case.  *Crestview*itself held, upon thoroughly reviewing the “statutes, published regulations, and interpretive rules governing administrative hearings conducted by CMS,” that “HHS’s interpretive rule allowing ALJs to grant summary judgment without an in-person hearing is valid.”  373 F.3d**at 747-50.  The ALJ appropriately recognized this point and correctly relied upon several other precedents confirming the permissibility of summary judgment rulings without convening a hearing in cases like this one.  ALJ Decision at 5 (citing *Illinois 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 recognized that, where no genuine issues of material facts exist such that there is no need for an evidentiary hearing to take evidence,” an ALJ “may decide the appeal on summary judgment and need not convene a hearing*.*”  *Wamba* at 8.  The record confirms that this is such a case.

Accordingly, the ALJ’s decision not to convene an evidentiary hearing was legally permissible and not erroneous.

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***The ALJ lawfully upheld on summary judgment CMS’s determination of August 8, 2018, as the correct effective date of Petitioner’s reassigned Medicare billing privileges.***After discussing the established standards concerning summary judgment in administrative review proceedings under 42 C.F.R. Part 498, the ALJ ruled as follows:

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.

ALJ Decision at 5-6.  On the central substantive issue of Petitioner’s correct effective date, the ALJ concluded that “Petitioner reassigned his right to file claims with and receive payment from Medicare to [Skilled] effective August 8, 2018, with retrospective billing pursuant to the reassignment permitted beginning July 9, 2018.”  *Id.* at 11.

Petitioner argues that the ALJ’s entry of summary judgment for CMS in this case was erroneous for two reasons.  First, Petitioner asserts that “there were disputes of material facts that should have allowed for oral arguments to be heard.”  RR at 4.  Second, Petitioner claims that the ALJ improperly “made credibility determinations and weighed the evidence or decided which inferences to draw from the evidence” when addressing Petitioner’s contentions that “Medicare rules are complicated and that the boundary between DC and Maryland is not always clear.”  *Id.*

Petitioner’s contentions are incorrect, and the ALJ’s decision is free of legal error, for the following reasons.

***CMS’s determination of August 8, 2018 as the effective date of Petitioner’s reassignment of Medicare billing privileges to Skilled, with retrospective billing permitted beginning July 9, 2018, is consistent with the controlling regulations and sub-regulatory authority.***The ALJ upheld CMS’s determination of the effective date of Petitioner’s reassigned Medicare billing privileges based upon a multi-step analysis.  The ALJ first stated that the enrollment regulations “do not specify how to determine an effective date for an authorized reassignment,” but “CMS has addressed the determination of the effective date of a reassignment by policy or interpretive rules in effect at the time” that CMS determined Petitioner’s effective date.  ALJ Decision at 8.  The ALJ opined that the relevant policy appeared in the MPIM, which “required that a CMS-855R be completed and filed by an individual that wanted to reassign benefits” and “incorporate[d] the

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provisions of 42 C.F.R. §§ 424.520(d) and 424.521(a),” the pertinent enrollment and retrospective billing regulations.  *Id.* at 8-9.  The ALJ then acknowledged that a physician’s effective date of enrollment in Medicare “is governed by 42 C.F.R. § 424.520(d).”  *Id.* at 9.  The ALJ further recognized that an enrolled physician “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,” under section 424.521(a).  *Id.*The ALJ reasoned that “[a]pplying the regulations in this case is straightforward” because the relevant facts and dates of Petitioner’s enrollment were undisputed, and “[a]ccordingly, the effective date of Petitioner’s enrollment with a DC practice location and his reassignment to [Skilled] may only be August 8, 2018.”  *Id.*  The ALJ further concluded that, “[p]ursuant to 42 C.F.R. § 424.521(a), retrospective billing is permissible for only 30 days, in this case, beginning on July 9, 2018.”  *Id.*

Petitioner has not argued that the ALJ’s legal reasoning and conclusions concerning the correct effective date and retrospective billing date were in error, and we perceive no error.  CMS’s initial and reconsidered determinations are consistent with the controlling regulations.  As we have held in the past, the relevant regulatory language, though perhaps intricate, is also plain.  *See Lindsay Zamis, M.D., a Pro. Corp.*, DAB No. 2802, at 9 (2017) (referencing “section 424.520(d)’s ‘plain language’” as determinative of required effective date) (citing *Karthik Ramaswamy, M.D.*, DAB No. 2563, at 6 (2014), *aff’d* *sub nom. Ramaswamy v. Burwell*, 83 F. Supp. 3d 846 (E.D. Mo. 2015)).  By the plain regulatory language, the “effective date of billing privileges” must be “the later of” either the “date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor” or the “date that the supplier first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d)(1), (2).  Also by the plain regulatory language, retrospective billing is permissible for up to “[t]hirty days prior to [a supplier’s] effective date” in these circumstances.  *Id*. § 424.521(a).  There is no factual dispute that Petitioner began working at Skilled on January 8, 2018, but did not file approvable Forms CMS-855I and CMS-855R until August 8, 2018.  Thus, a plain-language application of section 424.520(d) supports the ALJ’s conclusion that Petitioner’s effective date must be August 8, 2018, the later of the two determinative dates.  A plain-language application of section 424.521(a)(1) likewise supports the ALJ’s conclusion that the earliest permissible retrospective billing date is July 9, 2018, the thirtieth day before August 8, 2018.  Thus, we agree with the ALJ that application of the plain regulatory language to the undisputed facts is straightforward, and the result the ALJ reached is not erroneous.

The ALJ’s reliance on MPIM sections 15.5.20.E.3 and 15.17 in determining Petitioner’s effective date was not required, given the plain language of 42 C.F.R. §§ 424.520(d) and 424.521(a), but also was not erroneous, as the ALJ correctly recognized that the MPIM guidance and regulations are in harmony.  ALJ Decision at 8-9.  As the Board has stated, “While the MPIM provisions are certainly consistent with the regulations, it is

Page 12

unnecessary to rely on them,” and “[s]ection 424.520(d) sets the effective date of billing privileges for all physicians based on the filing of an enrollment application,” which “[t]he reassignment process requires.”  *Gaurav Lakhanpal, MD*, DAB No. 2951, at 5 n.5 (2019).  When a supplier applies to reassign Medicare billing and payment rights to a new employer, the supplier’s “prior enrollment remains in effect until the new enrollment application altering the billing privileges to reassign payment is approved *with an effective date assigned pursuant to the regulation*.”  *Id.*(emphasis added).

Several Board decisions since *Lakhanpal* equally support CMS’s (and the ALJ’s) effective date determination in this case:  *Yakup Akyol, M.D.*, DAB No. 3017, at 2, 5-6 (2020); *Timothy Ekhlassi, M.D., M.P.H.*, DAB No. 3065, at 2, 6-7 (2022); and *Sandeep Gupta, M.D.*, DAB No. 3088, at 6-11 (2023).  *Akyol*, which concerned reassignment to a supplier’s employer, confirmed that, “[i]n order to reassign Medicare benefits, a physician must submit and obtain CMS’s approval of a reassignment application, known as form CMS-855R,” and affirmed an effective date determined per 42 C.F.R. § 424.520(d).  *Akyol*at 2, 5-6.  *Ekhlassi* also dealt with the effective date of a supplier’s reassignment and reiterated that, “[i]n order to reassign Medicare benefits, a physician must submit and obtain CMS’s approval of a reassignment application, form CMS-855R,” and again upheld an effective date determined by applying section 424.520(d).  *Ekhlassi*at 2, 6-7.  *Gupta* further confirmed that “42 C.F.R. §§ 424.520(d) and 424.521 apply to reassignments” of benefits and that applying section 424.520(d) to reassignments is “consistent with relevant Board precedent and the MPIM” as well as “the plain language of the regulation, its regulatory context, and established principles of regulatory construction.”  *Gupta* at 8, 11.

Accordingly, we uphold CMS’s determination that Petitioner’s reassigned Medicare billing privileges were effective August 8, 2018, with retrospective billing permitted beginning July 9, 2018, as consistent with controlling law.

***No disputes of material fact precluded entry of summary judgment.***The ALJ reasoned that, for purposes of establishing Petitioner’s effective date under 42 C.F.R. § 424.520, the key material facts consist of two undisputed dates, and CMS’s application of the law to those undisputed facts determined Petitioner’s effective date correctly as a matter of law.  The ALJ explained:

There is no dispute Petitioner was not enrolled with a practice location in DC from January 8 through July 8, 2018.  CMS Ex. 1 at 5. There is no dispute that Petitioner’s application to enroll with a practice location in DC and his reassignment of the DC claims for services from January 8 through July 8, 2018, were not received by [Novitas] until August 8, 2018. CMS Ex. 1 at 13, 17. August 8, 2018 is later than January 8, 2018. Accordingly, the effective date of Petitioner’s enrollment with a DC practice location and

Page 13

his reassignment to [Skilled] may only be August 8, 2018. Pursuant to 42 C.F.R. § 424.521(a), retrospective billing is permissible for only 30 days, in this case, beginning on July 9, 2018.

ALJ Decision at 9.

On appeal, Petitioner claims that the ALJ erred because “there were disputes of material facts that should have allowed for oral arguments to be heard.”  RR at 4.  Petitioner refers us generally to certain pages of Petitioner’s hearing request and brief before the ALJ as containing “statements of fact that were in dispute,” without specifying what the disputed facts were or where the record contains evidence of them.  *Id.*  We note that a petitioner’s “submission (including the request for review) may not incorporate by reference a brief or parts of a brief previously submitted to the ALJ,” and that the Board is not obligated to sift through Petitioner’s prior filings before the ALJ in search of allegedly disputed facts.  *See* *Guidelines*, “Additional Rules Applicable to Both Electronic and Non-Electronic Filing,” ¶ (c).  Even if we undertook that search, Petitioner “may not rely on the denials in its pleadings or briefs, but must furnish evidence of a dispute concerning a material fact – a fact that, if proven, would affect the outcome of the case under governing law,” not “conclusory or speculative statements.”  *Dumas*at 4, 18.  Yet the only example Petitioner provides to the Board of a material fact that should have prevented summary judgment is the conclusory statement “that Medicare rules are complicated and that the boundary between DC and Maryland is not always clear.”  RR at 4.

Whether a genuine dispute of material fact exists is itself a question of law,*Emery Cnty. Care & Rehab. Ctr.*, DAB No. 3006, at 6 (2020), and thus an issue that the Board reviews de novo.  In our assessment, as in the ALJ’s, the determinative, material facts, under the governing regulation, are the date when Petitioner first began furnishing services at a new practice location, and Petitioner’s (later and thus controlling) date of filing of a Medicare enrollment application that Novitas could and did approve.  Petitioner persistently has complained of complicated enrollment rules, confusing jurisdictional boundaries, difficult websites, and other administrative challenges that allegedly delayed submission of compliant Forms CMS-855I and CMS-855R, but those complaints, even if factually supported, could not make any difference to the legally required result.  “There is simply no requirement that the Government anticipate every problem that may arise in the administration of a complex program such as Medicare,” or ensure the user-friendliness of every bit of information that government agents supply in administering such a program.  *Heckler v. Community Health Servs. of Crawford Cnty., Inc.*, 467 U.S. 51, 59, 64 (1984); *see also*P. Prehearing Exch.**at 6 (expressing appreciation for “the tremendous responsibility and difficulty CMS (or its Contractor) has in carrying out the administration of the wide-ranging and complex Medicare program”).  Regardless of any administrative difficulties that occurred, Petitioner produced no evidence of having submitted before August 8, 2018, any application that Novitas was able to process to approval (thereby conferring an earlier effective date), which is the only fact that could

Page 14

have altered the outcome of this case.

Thus, there is no legal error in the ALJ’s determination that “Petitioner has failed to show that there is a genuine dispute as to any *material* fact.”  ALJ Decision at 6 (emphasis added).  The only factual disputes that Petitioner raised before the ALJ, and raises again before the Board, concern tangential, immaterial**explanations for Petitioner’s belated submission of compliant enrollment forms, and those rationales cannot alter the legally required result.  *See Logan Healthcare Leasing, LLC*, DAB No. 3036, at 1, 19 (2021) (affirming summary judgment where petitioner’s arguments went “beyond the confines of the ALJ’s discussion,” were “not on point,” and thus raised “no material factual issue”); *Glenburn Home*at 17 (stating that, in reviewing summary judgment granted without oral hearing, Board may “uphold the decision if the affected party . . . proffered testimonial evidence only on facts which, even if proved, clearly would not make any substantive difference in the result”).

Therefore, we uphold the ALJ’s conclusion that no disputes of material fact precluded entry of summary judgment for CMS.

***The ALJ did not make credibility determinations or weigh the evidence and appropriately drew all reasonable inferences in Petitioner’s favor.***The ALJ considered Petitioner’s arguments and evidence concerning the alleged complexities of the enrollment and reassignment process and how they allegedly hindered the timely submission of Petitioner’s approvable enrollment forms.  Petitioner’s arguments included Skilled’s unsworn, non-testimonial statements on Petitioner’s behalf that, when initially applying for Petitioner’s enrollment, “they were unaware some areas in Maryland are under the District of Columbia locality code.”  CMS Ex. 1, at 5.  Petitioner’s evidence on this point included printouts and other supporting exhibits that were not submitted in compliance with the ALJ’s instructions, but which the ALJ leniently admitted and reviewed.  *See*RFH at 1, Exs. A-F; ALJ Decision at 2.  After conducting that review, the ALJ plainly stated:

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.

ALJ Decision at 7.

Petitioner nevertheless asserts that “the ALJ made credibility determinations and weighed the evidence or decided which inferences to draw from the evidence, as it would have done when finding facts after a hearing on the record,” RR at 4, but that assertion is demonstrably incorrect.  The ALJ appropriately reviewed the record evidence in the light

Page 15

most favorable to Petitioner and drew inferences *in Petitioner’s favor*by characterizing as “correct” Petitioner’s assertions that Medicare rules are complicated and that the D.C.-Maryland boundary is not always clear.  ALJ Decision**at 9.  The ALJ simply and rightly recognized that those factors cannot affect the correctness of CMS’s determination of Petitioner’s effective date under the required regulatory parameters of 42 C.F.R. § 424.520(d).  *Id.*

We thus conclude that the ALJ did not make credibility determinations or weigh the evidence and appropriately drew all reasonable inferences in Petitioner’s favor.

***The ALJ’s entry of summary judgment in CMS’s favor is consistent with Board precedent, the Federal Rules of Civil Procedure, and interpretive case law.***The ALJ stated, when explaining the permissibility and utility of summary judgment procedures in this administrative context, that the Board accepts the Federal Rules of Civil Procedure and interpretive case law as useful guidance:

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.

ALJ Decision at 5.

Petitioner counters that certain Board decisions – namely, *Crestview*and *Holy Cross Village at Notre Dame, Inc.*, DAB No. 2291 (2009), which themselves extensively discuss the Federal Rules – support a conclusion that the ALJ entered summary judgment erroneously, RR at 4; however, those precedents are distinguishable from this case.  Both *Crestview* and *Holy Cross*were complex cases involving numerous alleged deficiencies in care provided at skilled nursing facilities, and, unlike this case, presented facially material factual disputes.

In *Crestview*, the reviewing court held summary judgment was erroneous because the facility presented affidavit evidence that created a genuine factual dispute concerning alleged deficiencies.  *See Crestview*, 373 F.3d at 753-56, 757.  By contrast, Petitioner submitted no affidavits or exhibits to challenge the material fact, which CMS presented

Page 16

by documentary exhibit, that August 8, 2018, was the date Petitioner filed the relevant approvable enrollment application (and was the latest, thus determinative, date requiring consideration under 42 C.F.R. § 424.520(d)).  *See* P. Prehearing Exch. at 1.  Moreover, *Crestview* confirmed, after a thorough review of Federal Rule of Civil Procedure 56 and the “statutes, published regulations, and interpretive rules governing administrative hearings conducted by CMS,” that “HHS’s interpretive rule allowing ALJs to grant summary judgment without an in-person hearing is valid.”  *Crestview*at 747-50.  The ALJ in the present case correctly recognized that point and relied on several other precedents confirming the permissibility of summary judgment in cases such as this.  ALJ Decision at 5 (citing *Illinois Knights* at 3-4; *Garden City*; and *Everett Rehab.* at 3).

Petitioner’s reliance on *Holy Cross* also is unpersuasive, because that case, too, is distinguishable.  In *Holy Cross*, the petitioner submitted 11 exhibits disputing material facts, yet the ALJ repeatedly and impermissibly drew factual inferences that were inconsistent with that evidence, adverse to the petitioner, and thus erroneously contrary to Federal Rule of Civil Procedure 56 and its interpretive caselaw.  DAB No. 2291, at 2 n.2, 10, 11, 13, 15.  In this case, however, Petitioner did not challenge the material facts CMS set forth in its exhibits and briefing, and the ALJ drew no inferences against Petitioner.  *See*P. Prehearing Exch. at 1.

Other Board decisions that have found error in an ALJ’s grant of summary judgment further illustrate why the ALJ committed no error in this case.  For example, in *Garden City*, DAB No. 1763, the ALJ erred by not addressing the petitioner’s request to cross-examine two opposing witnesses on whose statements the ALJ relied when granting summary judgment against the petitioner.  *Id.*at 10-11.  By contrast, in this case, CMS presented no written witness testimony and Petitioner admittedly was not disputing CMS’s presentation of the undisputed facts.  P. Prehearing Exch. at 1.  In *Medford Care Center*, DAB No. 3040 (2021), the petitioner submitted five exhibits (including written testimony) and written objections to three CMS exhibits, yet the ALJ granted summary judgment for CMS without ruling on the admissibility of any exhibits or receiving any of them into the record.  *Id.* at 6-7.  The Board vacated the ALJ’s decision and remanded the appeal because “[o]bjections to the admissibility of evidence cited to support or dispute a material fact . . . must be resolved to properly evaluate a motion for summary judgment.”  *Id.* at 18-19.  In the present case, by comparison, Petitioner raised no objections to CMS’s exhibits and the ALJ expressly admitted all exhibits that the parties filed, even though Petitioner’s were not submitted in compliance with the ALJ’s Prehearing Order.  *See* ALJ Decision at 2; ALJ’s Acknowledgment & Prehearing Order at 5.  Thus, no unresolved, threshold evidentiary determinations existed to preclude summary judgment for CMS.

We also consider the ALJ’s entry of summary judgment to be consistent with the Federal Rules of Civil Procedure and federal case law interpreting it.  The Federal Rules are not binding in this administrative appeal, but “the Board is guided by those rules and by judicial decisions on summary judgment in determining whether the ALJ properly

Page 17

granted summary judgment.”  *See Dumas*at 4 n.2.  The ALJ appropriately recognized those points, ALJ Decision at 5, and also that mere denials in pleadings or briefs cannot overcome an adequately supported summary judgment motion, but instead the non-movant “must furnish evidence of a dispute concerning a *material* fact.”  *Id.* at 6 (emphasis added); *see Anderson v. Liberty Lobby, Inc.*, 477 U.S. 242, 256 (1986) (“[A] party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.”); *Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.*, 475 U.S. 574, 586 (1986) (“When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.”) (footnote omitted).

Petitioner presented to the ALJ, at most, immaterial facts and sincere but unsubstantiated doubts about the fairness of CMS’s enrollment process – in short, nothing sufficient either factually or legally to forestall entry of summary judgment for CMS.  *See Anderson* at 247-48 (stating that “the mere existence of *some*alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no *genuine*issue of *material*fact”); *Edwin L. Fuentes*, DAB No. 2988, at 6 (2020) (“Disputes of fact preclude summary judgment only when they are material to the outcome of the matter. . . .  Thus, it is not sufficient for Appellant to identify disputed facts that have some relevance to his exclusion if deciding those factual disputes in Appellant’s favor could not alter the legal outcome of the case.”), *aff’d sub nom. Fuentes v. Becerra*, No. 4:20-cv-00026, 2021 WL 4341115 (W.D. Va. Sept. 23, 2021).

The ALJ’s entry of summary judgment for CMS did not constitute legal error.

***C.        The ALJ correctly rejected Petitioner’s arguments that are equitable in nature.***

In response to Petitioner’s arguments that “Medicare rules are complicated and that the boundary between DC and Maryland is not always clear,” the ALJ explained that “I have no authority to grant equitable relief.”  ALJ Decision at 9.

Petitioner nevertheless again requests an earlier reassignment effective date on identical grounds, RR at 4, raising considerations of flexibility and fairness that the ALJ correctly assessed to be inherently equitable in nature.  *See**Swann v. Charlotte-Mecklenburg Bd. of Educ.*, 402 U.S. 1, 15, 31 (1971) (stating that “breadth and flexibility are inherent in equitable remedies” and recognizing “the sense of basic fairness inherent in equity”).

The ALJ did not err in ruling that equitable relief is unavailable to Petitioner in these proceedings.  *See*ALJ Decision at 9.  “[T]he Board is bound by the applicable regulations and cannot grant relief based on equitable doctrines, theories, or reasons.”  *Laboratorio Concordia Lugaro*, DAB No. 3067, at 17 n.11 (2022).  Accordingly, “the Board has consistently held that the Board and the ALJ are not empowered to grant

Page 18

equitable relief.”*Union Pharmacy & Med. Supplies, Inc.*, DAB No. 3062, at 7 (2022); *see also Amber Mullins, N.P.*,**DAB No. 2729, at 6 (2016) (“The Board has consistently held that neither it nor an ALJ may provide equitable relief.”).  While Petitioner may genuinely believe that the Medicare distinction between Maryland-based practice locations and District of Columbia-based locations is confusing, or that the enrollment process is unfair in other respects, neither the ALJ nor the Board is empowered under existing regulations to grant Petitioner relief on such grounds.

Thus, the ALJ correctly rejected Petitioner’s arguments that are equitable in nature.

Conclusion

We affirm the ALJ’s June 8, 2020 decision upholding CMS’s determination that Petitioner’s reassigned billing privileges effective date is August 8, 2018, with retrospective billing permitted beginning July 9, 2018.

Endnotes

1 We cite to and apply the regulations in effect on August 27, 2018, the date of the initial determination of the effective date of Petitioner’s reassigned billing privileges.  *See George Yaplee Med. Ctr.*, DAB No. 3003, at 3 n.3 (2020) (“We cite to, and apply, the enrollment regulations in effect on . . . the date CMS’s contractor issued the initial determination.”).  CMS later amended several regulations governing Medicare enrollment and billing privileges, including 42 C.F.R. §§ 424.520 and 424.521 (amended effective January 1, 2020, January 1, 2021, and January 1, 2022).  *See* 84 Fed. Reg. 62,568 (Nov. 15, 2019), 85 Fed. Reg. 70,298 (Nov. 4, 2020), and 86 Fed. Reg. 62,240 (Nov. 9, 2021).  Those amendments do not apply to this appeal.

2 A 90-day retrospective billing period is authorized in the event of certain Presidentially-declared disasters.  *See* 42 C.F.R. § 424.521(a)(2).  That provision, which currently appears at 42 C.F.R. § 424.521(a)(1)(ii), does not apply to this appeal.

3 As of September 13, 2021, the Provider Enrollment Policy moved from Chapter 15 to Chapter 10 of the MPIM.  *See*CMS Pub. 100-08, Transmittal 10945, “Removal of Provider Enrollment Policy from Chapter 15 in Publication (Pub.) 100-08” (Aug. 12, 2021), available at https://www.cms.gov/files/document/r10945pi.pdf  (last accessed Mar. 6, 2023).

4 The facts in this section are undisputed and drawn from the record on which the ALJ relied.

5 The ALJ admitted into evidence as Petitioner’s Exhibits A through F the documents attached to Petitioner’s initial request for hearing.  ALJ Decision at 2, 2 n.2.  This Decision treats the first substantive page after the identifying cover sheet as page 1 of each of Petitioner’s Exhibits.

6 CMS’s Statement of Undisputed Material Facts before the ALJ did not include the date that Petitioner first began furnishing services at Skilled, but that date was January 8, 2018, as each party has acknowledged and neither disputes.  *See*RFH at 1 (“Dr. Onyiuke has been a participating provider with Medicare and our physicians’ group,” that is, Skilled, “since 01/08/2018.”); CMS Prehearing Exch. at 1 (“Petitioner asks this Tribunal to change the effective billing date to January 8, 2018, because that is the date Petitioner began furnishing Medicare services for the physician group.”).
  
          /s/
        Christopher S. Randolph

                      Board Member
          /s/
        Constance B. Tobias

                      Board Member
          /s/
        Kathleen E. Wherthey

                      Presiding Board Member Back to top
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