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                              Pacific Health Education Cognitive Center, DAB CR5911 (2021)
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Pacific Health Education Cognitive Center, DAB CR5911 (2021)








  
  
    

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





Pacific Health Education Cognitive Center
(CCN: 054675)
Petitioner,

v.

Centers for Medicare & Medicaid Services, Respondent.
Docket No. C-20-682Decision No. CR5911July 27, 2021

        
              
    

      DECISION

The effective date of Petitioner's provider agreement and enrollment in Medicare as a community mental health center (CMHC) is January 15, 2020.

I.  BACKGROUND AND UNDISPUTED FACTS

There is no dispute that Petitioner is a CMHC and a provider within the meaning of 42 C.F.R. § 400.202.1

On March 4, 2019, Noridian Healthcare Solutions, a Medicare administrative contractor (MAC), received Petitioner's initial Medicare enrollment application (CMS-885A) for Medicare enrollment and certification as a CMHC.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 14.

On March 14, 2019, the MAC informed Petitioner that it had assessed its application and forwarded it to the California Department of Public Health (state agency) for a survey by the state agency or an approved deemed accrediting organization to ensure Petitioner met

**Page 2**

the conditions of participation for a CMHC.  The letter further advised Petitioner that CMS would determine whether or not Petitioner met all conditions of participation and would so inform Petitioner.  Petitioner was instructed to contact the MAC upon receiving their approval letter from CMS as Petitioner may need to forward any approval letter to the MAC to complete the Medicare enrollment process.  CMS Ex. 2.
On January 15, 2020, the state agency determined based on its survey, that Petitioner met all federal requirements to participate in Medicare as a CMHC.  CMS Ex. 1 at 9.  The MAC informed CMS on March 11, 2020, that Petitioner was certified to be in compliance with the conditions of participation effective January 15, 2020.  CMS Ex. 1 at 8.

On March 11, 2020, Petitioner's provider agreement was accepted on behalf of the Secretary of Health and Human Services (the Secretary).  CMS notified Petitioner on March 11, 2020, that Petitioner's provider agreement was effective January 15, 2020, and Petitioner was provided a copy of the executed agreement.  CMS Ex. 1 at 5-7.  On April 6, 2020, Petitioner requested reconsideration of the effective date of its provider agreement.  Petitioner requested that its effective date be changed to April 1, 2019, stating that is when Petitioner filed its application and that it began treating patients in April 2019.  CMS Ex. 1 at 4.

The MAC notified Petitioner on April 27, 2020, that its Medicare enrollment application as a CMHC was approved effective January 15, 2020.  CMS Ex. 3.

On May 27, 2020, CMS issued a reconsidered determination upholding the January 15, 2020 effective date of Petitioner's provider agreement and Medicare enrollment and billing privileges.  CMS Ex. 1 at 1-3.

On July 31, 2020, Petitioner filed its request for hearing (RFH) before an administrative law judge (ALJ).  The case was docketed and assigned to me for hearing and decision on August 4, 2020, and an Acknowledgement and Prehearing Order (Prehearing Order) was issued.

On September 3, 2020, CMS filed its prehearing brief and motion for summary judgment with CMS Exs. 1 through 3.  Petitioner filed a letter on October 16, 2020, which I treat as Petitioner's brief in response (P. Br.) to CMS's motion.  CMS waived the right to file a reply brief on October 20, 2020.  Petitioner has not objected to my consideration of CMS Exs. 1 through 3 and they are admitted as evidence.  Petitioner filed with its request for hearing several documents.  Departmental Appeals Board Electronic Filing System (DAB E-File) Items 1a through 1f.  DAB E-File Items 1a, 1c, 1d, and 1f duplicate documents placed in evidence by CMS, the documents are cumulative, and not admitted for that reason.  DAB E-File Items 1b and 1e are admitted as Petitioner's Exhibits (P. Ex.) 1 and 2, respectively.

**Page 3**

II.  DISCUSSION

**A.  Applicable Law**

The Medicare program is established by Title XVIII of the Social Security Act (Act) (42 U.S.C. §§ 1395-1395lll), and includes Medicare Parts A, B, C, and D.  The Medicare program pays for covered health care items and services furnished to Medicare beneficiaries by qualified providers and suppliers.  Act §§ 1811-1860D-43.  Qualified providers and suppliers are those who have a provider agreement or supplier approval, if required; are enrolled in Medicare; and are granted billing privileges.  42 C.F.R. pt. 424, subpt. P; pt. 489.

A CMHC must meet the requirements of the definitions of a CMHC listed in section 1861(ff)(3)(B) of the Act and 42 C.F.R. § 410.2, as well as the conditions of participation set forth in 42 C.F.R. pt. 485, subpt. J.  A CMHC must enroll in Medicare and be granted billing privileges.  Additionally, as a provider, a CMHC must be granted a provider agreement by the Secretary.  42 C.F.R. § 489.2(b), (c)(2).  The state survey agency determines by a survey whether a CMHC meets the conditions of participation and makes a recommendation to CMS before a CMHC is granted a provider agreement.  42 C.F.R. § 489.10(d).  If CMS determines that a provider meets all requirements, CMS sends the provider a provider agreement.  If the provider accepts and returns the agreement signed, CMS determines whether to accept the agreement and notifies Petitioner, specifying the effective date of the agreement.  42 C.F.R. § 489.11.  Pursuant to 42 C.F.R. § 489.13(a)(2)(i), the effective date of a provider agreement with a CMHC is the "date on which CMS accepts a signed agreement which assures that the CMHC . . . meets all Federal requirements."  The effective date of the provider agreement may be as early as the date of a survey that determines that the provider meets all applicable federal requirements.  42 C.F.R. § 489.13(b).

A provider, including a CMHC such as Petitioner, must also enroll in Medicare and be granted billing privileges in order to receive payment for Medicare-covered items or services, from either Medicare or a Medicare beneficiary.  42 C.F.R. § 424.505.  Enrollment is "the process Medicare uses to establish eligibility to submit claims for Medicare-covered items and services" or to order such items or services, and results in granting the provider or supplier Medicare billing privileges.  42 C.F.R. § 424.502.  Requirements for enrolling and maintaining enrollment are established by 42 C.F.R. § 424.510-.516.  A provider or supplier must submit required information on the correct enrollment application, and when required, successfully complete a state survey and certification or accreditation process, before CMS enrolls the provider or supplier in Medicare.  42 C.F.R. § 424.510(a)(1), (d)(5).  Pursuant to 42 C.F.R. §§ 424.510(b) and (c) and 424.520(a), the effective date for billing privileges for a provider or supplier that is subject to a state survey and certification or accreditation by an approved accrediting

**Page 4**

agency, is determined under 42 C.F.R. § 483.13.  There is no provision for a CMHC to retrospectively bill for care and services during a period prior to the effective date of its provider agreement.  42 C.F.R. § 424.521.

Pursuant to 42 C.F.R. § 498.3(b)(15), "[t]he effective date of a Medicare provider agreement or supplier approval" is an initial determination subject to review by an ALJ.  However, the state survey agency decision as to when to conduct an initial survey of a provider is not an initial determination subject to appeal or review under 42 C.F.R. pt. 498.  42 C.F.R. § 498.3(d)(15).

**B.  Issues**

Whether summary judgment is appropriate; and

Whether the effective date of Petitioner's provider agreement and enrollment in the Medicare program is January 15, 2020.

**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.  Summary judgment is appropriate in this case.**

Petitioner is entitled to a hearing on the record before an ALJ under the Social Security Act (Act).  Act §§ 205(b); 1866(h)(1), (j); *Crestview Parke Care Ctr. v. Thompson*, 373 F.3d 743, 748-51 (6th Cir. 2004).  However, when summary judgment is appropriate, no hearing is required.  The Board has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498.  *See, e.g.*, *Crestview Parke*, 373 F.3d at 748-51; *Ill. Knights Templar Home*, DAB No. 2274 at 3-4 (2009); *Garden City Med. Clinic*, DAB No. 1763 (2001); *Everett Rehab. & Med. Ctr.*, DAB No. 1628 at 3 (1997).  The Board has accepted that Fed. R. Civ. P. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate.  I advised the parties in the Acknowledgment and Prehearing Order (Prehearing Order) that summary judgment is an available procedural device and that the law as it has developed related to Fed. R. Civ. P. 56 will be applied.  Prehearing Order ¶¶ III. D. & G.  Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law.  *See* *Anderson v. Liberty Lobby, Inc.*, 477 U.S. 242, 248 (1986); *Mission Hosp. Reg'l Med. Ctr.*, DAB No. 2459 at 5 (2012) (and cases cited therein); *Experts Are Us, Inc.*, DAB No. 2452 at 5 (2012) (and cases cited therein); *Senior Rehab. & Skilled Nursing Ctr.*, DAB No. 2300 at 3 (2010) (and cases cited therein).

**Page 5**

Petitioner requests that the effective date of its provider agreement, enrollment, and billing privileges be retroactive to May 28, 2019 (RFH at 2) or April 1, 2019 (CMS Ex. 1 at 4).  Petitioner argues that it should not have been surveyed by the state agency and that the survey process should not have taken so long.  RFH.  Petitioner argues that CMS should use the date of filing of its enrollment application that was approved as the effective date of enrollment with retrospective billing for up to 45 days.  Petitioner also argues that it has been operational since February 2019 and that being unable to bill for services from February 2019 to January 15, 2020, has a significant adverse financial impact.  The financial impact is even more dire because Petitioner shut down March 12, 2020, due to COVID 19.  P. Br.  Petitioner's arguments discussed hereafter must be resolved against it as a matter of law.  There is no genuine dispute as to any material fact.  Summary judgment is appropriate.

**2.  Pursuant to 42 C.F.R. § 489.13(a)(2)(i) and (b), the effective date of Petitioner's provider agreement, enrollment in Medicare, and billing privileges is January 15, 2020.**

The regulations are clear.  A state survey agency determines whether a CMCH applying for Medicare enrollment and requesting a provider agreement meets the conditions of participation and makes a certification or recommendation to CMS.  42 C.F.R. §§ 489.2(b)(8), 489.10(d).  Only after determining based on a CMCH's enrollment application and related documents and receipt of the certification of the state survey agency, does CMS send written notice to the CMCH that it meets requirements, and provides the CMCH a provider agreement that the CMCH must execute and return to CMS before CMS enters the provider agreement on behalf of the Secretary and completes the enrollment process.  42 C.F.R. § 489.11.

The effective date of a provider agreement with a CMCH, and the effective date of a CMCH's Medicare enrollment and billing privileges are determined pursuant to 42 C.F.R. § 489.13(a)(2)(i).  42 C.F.R. §§ 424.510(b), (c), 424.520(a).  Pursuant to 42 C.F.R. § 489.13(b), CMS may determine that the effective date of the provider agreement and a CMCH's enrollment and billing privileges is the date of the state agency survey if at that time all other federal requirements are met.  CMS explained in the reconsidered determination that the state agency survey of Petitioner was completed on January 15, 2020, and that was the earliest date all Medicare participation requirements were met.  CMS Ex. 1 at 1.  Accordingly, I conclude that January 15, 2020, was the effective date of Petitioner's provider agreement and its Medicare enrollment and billing privileges.

Petitioner requests that the effective date of its provider agreement, Medicare enrollment, and billing privileges be changed to May 28, 2019 (RFH at 2) or April 1, 2019 (CMS Ex. 1 at 4).  However, I have no authority to grant the relief requested.

**Page 6**

Petitioner argues that it should not have been surveyed by the state agency.  RFH.  This argument must be rejected as a matter of law.  Petitioner sought a provider agreement and Medicare enrollment with billing privileges as a CMCH.  Pursuant to 42 C.F.R. §§ 489.10(d)-.11, CMS had discretion not to enter a provider agreement with Petitioner until the state agency certified that Petitioner met all conditions of participation for a CMCH under 42 C.F.R. pt. 485, subpt. J.

Petitioner also argues that the survey process should not have taken so long.  RFH.  It is easy to understand Petitioner's perspective.  However, the regulations do not establish a time-limit for completion of a state agency survey to determine whether a prospective provider meets all conditions of participation, which is a precondition to the provider entering a provider agreement with the Secretary and being enrolled in Medicare and granted billing privileges.  42 C.F.R. pt. 489.  Petitioner was clearly informed of the need for a survey and the process.  P. Ex. 1 (DAB E-File Item 1b).  Further, when CMS granted Petitioner's priority exception survey request, CMS clearly advised Petitioner that other types of enforcement surveys had priority over initial surveys.  P. Ex. 2 (DAB E-File Item 1e).  Even if I accept as true for purposes of summary judgment that the survey and approval process for Petitioner's enrollment was excessively long, that fact is not a basis for any legal remedy for Petitioner.  The decision when to conduct an initial survey for a prospective provider, as Petitioner was at the time, is not a reviewable decision.  42 C.F.R. § 498.3(d)(15).  I also have no authority to fashion any equitable remedy for Petitioner.  *US Ultrasound*, DAB No. 2302 at 7 (2010).

Petitioner argues that CMS should use the date Petitioner filed its enrollment application that was approved by the MAC as the effective date of enrollment with retrospective billing for up to 45 days.  For certain suppliers the effective date of Medicare enrollment and billing privileges is the date a MAC received the application that it could process to approval.  42 C.F.R. § 424.520(d).  However, because Petitioner is a CMCH and a provider, a survey was deemed necessary before Petitioner could be enrolled and 42 C.F.R. § 489.13 controls the determination of the effective date of both Petitioner's provider agreement and its Medicare enrollment and billing privileges.  42 C.F.R. § 424.520(a).  Pursuant to 42 C.F.R. § 489.13(a)(2)(i), the effective date of a provider agreement with a CMHC is the "date on which CMS accepts a signed agreement which assures that the CMHC . . . meets all Federal requirements."  The effective date of the provider agreement may be as early as the date of a survey that determines that the provider meets all applicable federal requirements.  42 C.F.R. § 489.13(b).  I conclude that there is no authority for using the date of filing of Petitioner's enrollment application as the effective date of Petitioner's enrollment and billing privileges or Petitioner's provider agreement.  Furthermore, the only authority permitting retrospective billing is 42 C.F.R. § 424.521, and CMHCs are not included among those entities that are authorized to bill retrospectively.

**Page 7**

Petitioner argues that it has been operational since February 2019 and that being unable to bill for services from February 2019 to January 15, 2020, has a significant adverse financial impact.  The financial impact is even more dire because Petitioner shut down March 12, 2020, due to COVID-19.  P. Br.  Although I accept Petitioner's assertions as true for purposes of summary judgment, the assertions provide no basis for relief.  I simply have no authority to fashion equitable relief for Petitioner.  *US Ultrasound*, DAB No. 2302 at 7.

III.  CONCLUSION

For the forgoing reasons, I conclude that the effective date of Petitioner's provider agreement, enrollment in Medicare, and billing privileges is January 15, 2020.


          /s/
        Keith W. Sickendick

                      Administrative Law Judge
      1. Citations are to the 2019 revision of the Code of Federal Regulations (C.F.R.), unless otherwise stated. back to note 1 Back to top
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