Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of: )
)
Vincent Pirri, M.D., ) Date: February 16, 2010
)
Petitioner, )
)
“Vee ) Docket No. C-10-19
) Decision No. CR2065
Centers for Medicare & Medicaid )
Services. )
)
DECISION

This case is before me on the Centers for Medicare & Medicaid Services’ (CMS) motion
for summary disposition. It involves Southern Pain & Anesthesia, LLC’s (SPA)
challenge to CMS’s determination of the effective date of Medicare billing privileges for
Vincent Pirri, M.D. CMS has submitted a memorandum and exhibits in support of its
motion. Petitioner has responded to the motion with a letter. Having reviewed the
pleadings and exhibits carefully, I find that no material facts remain in dispute and
conclude that CMS’s position is correct as a matter of law. I therefore grant CMS’s
motion and affirm CMS’s determination to approve Petitioner’s effective date of
participation in the Medicare program as April 23, 2009, making his effective billing date
March 24, 2009.

I. Legal Authority

The Social Security Act (Act) authorizes the Secretary of Health and Human Services to
promulgate regulations governing the enrollment process for providers and suppliers.
Act §§ 1102, 1866(j) [42 U.S.C. §§ 1302, 1395cc(j)]. Under the Secretary’s regulations,
a provider or supplier that seeks billing privileges under Medicare must “submit
enrollment information on the applicable enrollment application. Once the provider or
supplier successfully completes the enrollment process ... CMS enrolls the provider or
supplier into the Medicare program.” 42 C.F.R. § 424.510(a).
The regulations specify that a “provider or supplier must submit a complete enrollment
application and supporting documentation to the designated Medicare fee-for-service
contractor,” and that the application include “complete . . . responses to all information
requested within each section as applicable to the provider or supplier type.” 42 C.F.R.

§ 424.510(d)(1)-(2). Signatures are required on enrollment applications. 42 C.F.R.

§ 424.510(d)(3)(i)(A), (C). “To enroll in Medicare and obtain Medicare billing privileges
after notification of a rejected enrollment application, the provider or supplier must
complete and submit a new enrollment application and submit all supporting
documentation for CMS review and approval.” 42 C.F.R. § 424.525(c) (emphasis
added).

The effective date of enrollment for physicians and certain other practitioners is set by
regulation. As of January 1, 2009, when new regulations went into effect, the effective
date is the later of the date of filing of a Medicare enrollment application that was
subsequently approved by a Medicare contractor or the date that an enrolled physician or
other practitioner first began furnishing services at a new practice location. 42 C.F.R.

§ 424.520(d); 73 Fed. Reg. 69726, 69940 (Nov. 19, 2008).

This regulation establishes the point in time (effective date) from which CMS may
determine to reimburse retrospectively claims for services provided by an enrolled
physician. Pursuant to 42 C.F.R. § 424.521(a), physicians, non-physician practitioners
and physician and non-physician practitioner organizations may retrospectively bill for
services 30 days prior to their effective date if circumstances precluded enrollment in
advance of providing services to Medicare beneficiaries.’ A provider or supplier may
allenge the effective date of a Medicare provider agreement or supplier approval. 42
E.R. § 498.3(b)(15).

ae

II. Procedural Background

Here, SPA employed Dr. Pirri as a locum physician from September 1, 2008 to February
6, 2009. On or about September 1, 2008, SPA, submitted an 885R application to the
CMS contractor to reassign Dr. Pirri’s benefits.” However, the application was missing

' Under previous policy (prior to January 1, 2009), physicians were allowed to
retrospectively bill Medicare for services provided to Medicare beneficiaries 27 months
before the effective date of enrollment.

> The form CMS 855R is the Medicare enrollment application for the
reassignment of Medicare benefits. The form CMS 855] is the Medicare enrollment
application for physicians and non-physician practitioners. CMS Enrollment
Applications, available at http://www.cms.hhs.gov/MedicareProviderSupEnroll (then
follow “Enrollment Applications” hyperlink).
Dr. Pirri’s signature, and the contractor returned the application for re-submittal. In
November 2008, Dr. Pirri signed the very same form that SPA had originally submitted,
and SPA resubmitted the application.’ CMS Ex. 2, at 3.

In the middle of February 2009, the contractor returned the 855R form a second time
because Petitioner did not submit a new certification page with a new signature of the
authorized or delegated official. By this time, Dr. Pirri was no longer employed by SPA.
SPA was not able to obtain the Dr. Pirri’s signature until March 15, 2009. It then
submitted the new certification page, which the contractor received on April 23, 2009.
CMS Ex. 2, at 3.

On May 11, 2009, the contractor notified SPA that it had issued Dr. Pirri’s Provider
Transaction Access Number (PTAN) with the effective billing date March 23, 2009.
CMS Ex. 5. On June 16, 2009, SPA requested reconsideration and asked that Dr. Pirri’s
effective date be changed to September 1, 2008 since it started the process in November
and submitted a fully executed form with original signatures in January. CMS Ex. 4;
CMS Ex. 2, at 3.

On September 14, 2009, the contractor notified SPA that it had affirmed its earlier
determination of Dr. Pirri’s April 23, 2009 effective date, which meant that SPA’s
retroactive billing for Dr. Pirri could go back no further than March 24, 2009. On
September 18, 2009, SPA timely requested a hearing.

CMS has filed a motion for summary judgment and SPA has filed a response (CMS Br.;
P. Response.). CMS has submitted thirteen exhibits (CMS Exs. 1-13). SPA has not
submitted any exhibits.

III. Issue

The sole issue before me is whether Dr. Pirri is entitled to an effective date of his
reassignment of benefits to SPA on any date prior to April 23, 2009. This legal issue has
been addressed in a variety of factual settings by several other Administrative Law
Judges (ALJs), by appellate panels of the Departmental Appeals Board (Board), and by
me. Although some of those factual settings have differed slightly from the present one
in certain details, none have differed in such a way as to establish an exception to this
forum’s well-settled rule that requires me to find that Petitioner is not entitled to approval
as a Medicare provider on any date prior to April 23, 2009.

> Neither party has provided the exact dates of Petitioner’s application
submissions.
IV. Discussion

1. CMS received Petitioner’s complete application on April 23, 2009, and thus,
it correctly determined that to be the date of Petitioner’s enrollment.‘

The effective date of enrollment for physicians and certain other practitioners is set by
regulation. As of January 1, 2009, the effective date is the later of two dates: either the
date of filing of a Medicare enrollment application that a Medicare contractor
subsequently approved or the date that an enrolled physician or other practitioner first
began furnishing services at a new practice location.° 42 C.F.R. § 424.520(d); 73 Fed.
Reg. 69726, 69940 (Nov. 19, 2008).

Here, the contractor received the complete enrollment application, which it subsequently
approved, on April 23, 2009. CMS Ex. 2, at 3; CMS Ex. 12, at 1.

Petitioner contends that the application that was returned in February (with both original
signatures) was a complete application that the contractor should have been able to
process. In its hearing request, Petitioner states that when SPA received the returned
855R in February, it called the contractor to determine the problem. SPA expresses
disbelief that a new signature page was required to process the application:

How can there be any impropriety if the same person who signed the form the first
time, had the physician sign upon return of the form, and, then returned the form
to CMS? The physician had to acknowledge [the signature of the authorizing
official] when he signed the form because he signed just above [it].

P. Response at 1. Petitioner complains that there is no rule or statute that supports CMS’s
denial of a “fully executed form.” P. Response at 2. However, the regulations require a
new application when one is rejected and CMS guidance specifically requires the
submission of a new certification page when an application is returned.

* T make this one finding of fact and conclusion of law to support my decision in
this case.

> Tn its September 14, 2009 notice letter, the contractor states that it based its
determination on “new applicable regulatory requirements which went into effective [sic]
on April 1, 2009 and applied to all CMS 855 applications received after April 1, 2009.”
CMS Ex. 2, at 3. CMS does not address the discrepancy between the contractor’s
statement and the regulation’s effective date in its brief. However, CMS Publication 100-
8, Medicare Program Integrity Manual, Chapter 10, which outlines requirements for
enrollment in the Medicare program, states that the implementation date for the changes
is April 1, 2009.
Although the difference does not change the outcome of this case, it appears that
Petitioner’s original, September application was “returned,” as distinguished from
“rejected,” and that when Petitioner failed to cure the deficiency with his resubmission of
the original signature page, the application was then rejected. CMS Exs. 8, 9, 10. If
Petitioner’s application was “returned,” as the parties suggest in their briefs, it was not an
application, and thus, he would be required to submit a new application, including a new
certification page. If Petitioner’s application was “rejected,” as the contractor’s
application information sheet indicates, the regulations would require him to “complete
and submit a new enrollment application. ...” 42 C.F.R. § 424.525(c); see CMS Ex. 8.

Moreover, as the Secretary has delegated the authority to CMS to administer the
application process, CMS may establish guidelines to accomplish the task. Thus, even if
the policy is not stated explicitly in the regulations, CMS is authorized to establish
Medicare application processes and requirements and, thus, may determine what
constitutes a complete application.

CMS has established procedures for processing provider and supplier enrollment
applications. Medicare Program Integrity Manual (MPIM), CMS Pub. 100-8, Ch. 10
(Medicare Provider/Supplier Enrollment), available at http://www.cms.hhs.gov/Manuals
(then follow hyperlink for internet only manuals). When a contractor returns an
application, the guidelines specifically state that “[a]ny application resubmission must
contain a brand new certification statement page containing a signature and date. The
provider cannot simply add its signature to the original certification statement it
submitted.” CMS Pub. 100-8, Ch. 10, section 3.2.B (emphasis added). This policy was
ine fect well before the contractor returned Petitioner’s signature page in February
2009.

SPA also argues that Dr. Pirri should be enrolled earlier than April 23, 2009, because it
should not be penalized as a result of the contractor’s lengthy review process. SPA
asserts that it had completed and submitted an initial application for reassignment of Dr.
Pirri’s benefits in September 2008. It admits that it neglected to have Dr. Pirri sign the

® A “rejected” application is based on the provider’s failure to respond to the
contractor’s request for missing or clarifying information. A “returned” application is
considered a non-application. Additional Provider Enrollment Verification and Program
Integrity Activities, CMS Pub 100-08, Ch. 10, section 3.2.

’ This policy has been in effect since before December 19, 2008, as Transmittal
277 refers to section 3.2 and shows the language requiring a new certification statement
as unchanged by the transmittal. Additional Provider Enrollment Verification and
Program Integrity Activities, CMS Pub 100-08, Transmittal 277, C.R. 6097, Dec. 19,
2008, available at http://www.cms.hhs.gov/Transmittals.
certification page in September, but it asserts that once it resubmitted its application with
the original certification page in November, the contractor took two months to return it.
Arguendo, | accept this assertion as true, although Petitioner has provided no evidence to
support it.

Petitioner complains that if the contractor had accepted the “fully executed” signature
page in February, under the law SPA would be eligible to bill CMS for Dr. Pirri’s
services from September 1, 2008. Hearing Request at 2. However, even if CMS had
accepted the application in February, the regulations actually went into effect on January
1, 2009. 73 Fed. Reg. 69726, 69940 (Nov. 19, 2008). Although CMS has not explained
the basis for its policy requiring a “brand new certification statement,” the regulations
require that when an application is rejected and returned, providers and suppliers must
submit a new application. See 42 C.F.R. § 424.525(c). Aside from the regulation, in a
program as large as Medicare, CMS may establish policies and procedures to ensure
efficiency of the program as a whole, and it may refuse to make individual exceptions to
those policies.

That Petitioner may have experienced some delays in providing the contractor with all
necessary information — even if those delays may have been caused by the contractor’s
delays in processing the application — is no basis for me to order Petitioner to be enrolled
on a date that is earlier than the date when the contractor received all of the information
necessary to process Petitioner’s application. The regulatory criteria for enrollment allow
no such exception to the rule governing the effective date of enrollment. Even assuming
all of Petitioner’s complaints and assertions to be true, there is nothing in the regulations
which requires CMS to accept an application for enrollment on a date that is earlier than
the date when a complete application is received.

V. Conclusion

CMS is entitled to judgment as a matter of law. The date of Petitioner’s enrollment may
not be any earlier than April 23, 2009, the date the CMS contractor received a complete
application that it could process. CMS’s motion for summary judgment should be, and it
is, GRANTED.

/s/
Richard J. Smith
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In the Case of:
Mikhail Paikin, DO (NPI: 1376587246), Date: February 04, 2010

Docket No. C-10-85
Decision No. CR2064

Petitioner,
Vv.

Centers for Medicare & Medicaid Services.

eer

DECISION

Petitioner, Mikhail Paikin, DO, is not entitled to a hearing on the issues raised by his
request for hearing and the request for hearing is dismissed pursuant to 42 C.F.R.

§ 498.70(b). A party may request that I vacate a dismissal for good cause but a request to
vacate must be submitted within 60 days of receipt of the notice of dismissal. 42 C.F.R.
§ 498.72.

I. Background

The Medicare contractor, National Government Services (NGS), sent Petitioner’ a letter
dated November 18, 2008 advising Petitioner that his application for enrollment in
Medicare was granted with an effective date of August 2, 1995. According to Petitioner,
his enrollment was deactivated due to inactivity and a second application for enrollment
was filed. NGS sent Petitioner a letter dated May 13, 2009, advising Petitioner that his
application for enrollment was approved with an effective date of April 4, 2009.
Petitioner requested reconsideration by letter dated August 25, 2009, specifically

' The request for hearing was actually filed by the practice group, A. Amerimed
Physician, P.C. (Amerimed), with which Petitioner worked and to which he reassigned
his right to bill Medicare for services he provided to Medicare eligible beneficiaries.
However, it is the enrollment in Medicare of Mikhail Paikin, DO, that is in issue and not
the enrollment of Amerimed.
requesting that the effective date for his participation in Medicare be changed to October
1, 2008. Petitioner asserted in his request for reconsideration that he was not aware that
his prior enrollment would be deactivated if he failed to submit claims within 30 days of
enrollment. On September 23, 2009, a contractor hearing officer issued a decision
denying the reconsideration request for an earlier effective date of Medicare participation.
On October 5, 2009, Petitioner requested a hearing challenging the reconsideration
decision with the foregoing documents attached.

The case was assigned to me on November 2, 2009 for hearing and decision, and an
Acknowledgement and Prehearing Order (Prehearing Order) was issued at my direction
on that date. On December 2, 2009, the Centers for Medicare and Medicaid Services
(CMS) filed a motion to dismiss Petitioner’s request for hearing (CMS Motion) with
CMS exhibits (CMS Ex.) | through 8. On January 5, 2010, Petitioner submitted a letter
advising me that Petitioner elected not to file a response and requesting a decision on the
record.

II. Discussion
A. 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.” 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 contractors. Act § 1842(a) (42 U.S.C.
§ 1395u(a)).

> A “supplier” furnishes services under Medicare and includes 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.
The Act requires 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
in the event of denial or non-renewal. Act § 1866(j) (42 U.S.C. § 1395cc(j)). Pursuant to
42 C.F.R. § 424.505, 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. If enrollment is
approved, a supplier is issued a National Provider Identifier (NPI) to use for billing
Medicare and a PTAN, an identifier for the supplier for inquiries. Medicare Program
Integrity Manual (MPIM), CMS Pub. 100-08, Chapter 10, Healthcare Provider/Supplier
Enrollment, § 6.1.1.

“A prospective provider or supplier that is denied enrollment in the Medicare program, or
a provider or supplier whose Medicare enrollment has been revoked may appeal” the
decision in accordance with 42 C.F.R. Part 498. 42 C.F.R. § 424.545(a). Pursuant to 42
C.F.R. § 498.5(a), (d), and (/)(1) and (2), a prospective provider or supplier dissatisfied
with an initial decision to deny it enrollment may request reconsideration and, if
dissatisfied with the reconsideration decision, is entitled to a hearing before an
administrative law judge (ALJ). A provider or supplier dissatisfied with an initial
decision to terminate its participation is entitled to a hearing before an ALJ. 42 C.F.R.

§ 498.5(b) and (e). Initial determinations are listed at 42 C.F.R. § 498.3(b) and include:
whether a prospective provider qualifies as a provider; whether a prospective supplier
meets the conditions for coverage specified by the regulations; whether services of a
supplier continue to meet the conditions for coverage; the effective date of a Medicare
provider agreement or supplier approval; and whether to deny or revoke a provider or
supplier’s Medicare enrollment pursuant to 42 C.F.R. §§ 424.530 and 424.535. 42 C.F.R.
§ 498.3(b)(1), (5), (6), (15), and (17).

B. Issue
Whether Petitioner has a right to a hearing on the facts of this case.
C. Findings of Fact, Conclusions of Law, and Analysis
My conclusions of law are set forth in bold followed by the pertinent facts and analysis.

1. Petitioner has no right to a hearing by an ALJ on the issue of
whether his billing privileges were properly deactivated.

2. Petitioner has no right to a hearing by an ALJ on the issue of
whether he may obtain reimbursement from Medicare for services
provided to Medicare-eligible beneficiaries for more than 30 days prior
to his effective date of participation in Medicare.
3. Petitioner, as a supplier not subject to survey and certification or
accreditation, has no right to a hearing by an ALJ on the issue of
whether or not his effective date of enrollment was correctly
determined by CMS.

4. Petitioner has no right to a hearing by an ALJ and dismissal
pursuant to 42 C.F.R. § 498.70(b) is appropriate.

The request for hearing in this case was filed by Amerimed. The request for hearing
indicates that Petitioner began working as a member of Amerimed on or about October 1,
2008 and began providing services to Medicare beneficiaries. According to Petitioner,
more than 320 Medicare claims for services he provided between October 1, 2008 and
April 3, 2009 were denied for payment. Petitioner wants to have the claims paid and
represents in the request for hearing that Amerimed was told the only way to accomplish
that was to have Petitioner’s date of participation pushed back to October 1, 2008.
Petitioner also asserts that had Amerimed been told that it needed to submit claims within
30 days of the date of Petitioner’s enrollment in November 2008, it would have done so
and the issue would not have arisen. CMS Ex. 6. In the August 25, 2009 request for
reconsideration, Petitioner indicates that the November 18, 2008 notice granting him an
effective date of participation of August 2, 1995, was received on November 21, 2008,
but that no claim was submitted for payment until March 2009, and at that time Petitioner
was advised that his billing number was “deactivated for infrequent billing” because no
claim was submitted for 30 days. Petitioner asserted in the request for reconsideration
that Amerimed was unaware of the 30-day limit and believed it was 365 days as provided
by regulation. CMS Ex. 3, at 1.

CMS does not deny Petitioner’s assertion or rebut the evidence he presented with his
request for hearing that on November 18, 2008 NGS notified him that his application for
enrollment was approved with an effective date of August 2, 1995. CMS does not deny
Petitioner’s assertion in his request for hearing and request for reconsideration that his
billing privileges, based upon his enrollment in November 2008, were deactivated
because he failed to submit claims within 30 days of his enrollment. CMS Motion at 8-
10. CMS also does not deny Petitioner’s assertion in his request for reconsideration that
he submitted a claim in March 2009, within five months of notice of his enrollment, but
that he was nevertheless notified that his billing privileges were deactivated. CMS Ex. 3,
6.

Pursuant to 42 C.F.R. § 424.502, “[d]eactivate means that the provider or supplier’s
billing privileges were stopped, but can be restored upon submission of updated
information.” Pursuant to 42 C.F.R. § 424.540(a), CMS may deactivate a provider or
supplier’s billing privileges if a provider or supplier does not submit Medicare claims for
12 consecutive calendar months or fails to report certain changes of information within
90 calendar days of when the change occurred. Ifa provider or supplier is deactivated for
non-submission of a claim, the provider or supplier is required to recertify that enrollment
information on file with Medicare is correct and furnish any missing information; must
meet current Medicare requirements at the time of reactivation; and be prepared to submit
a valid claim. 42 C.F.R. § 424.540(b)(2); MPIM, Chap. 10, § 13.1. Reactivation after
deactivation for failure to submit a claim does not require submission of a new
enrollment application as is required when deactivation occurs for some other reason. 42
C.F.R. § 424.540(b)(1). The regulation provides that deactivation is an action to protect
the provider or supplier from misuse of its billing number and to protect the Medicare
Trust Fund, and that deactivation “does not have any effect upon a provider or supplier’s
participation agreement or any conditions of participation.” 42 C.F.R. § 424.540(c).

The undisputed facts are that Petitioner was enrolled in Medicare on November 18, 2008
with an effective date of August 2, 1995; that he submitted a claim within five months
but was advised that his billing privileges were deactivated for failure to submit a claim
within 30 days; and that NGS and the hearing officer treated Petitioner’s May 4, 2009
Medicare Enrollment Application (CMS 855R) as a new application rather than
Petitioner’s submission of updated information to reactive his billing privileges as
required by 42 C.F.R. § 424.540(b)(1) and (2). Based on the undisputed facts, the
regulations and the MPIM, NGS apparently failed to follow the regulations and CMS
policy guidance by deactivating Petitioner’s billing privileges after only 30 days with no
claims being submitted rather than waiting 12 months as required by the regulations.
NGS then committed a further error by treating Petitioner’s May 4, 2009 application as a
new enrollment rather than a request to reactivate his billing privileges. If it were in my
power and absent further evidence, I would grant Petitioner relief on this basis.
However, neither the Act nor the regulations grant Petitioner a right to a hearing before
an ALJ based upon a deactivation of billing privileges pursuant to 42 C.F.R. § 424.540.
Accordingly, I conclude that I have no jurisdiction or authority to grant Petitioner relief
on this basis.

CMS argues that Petitioner has no right to a hearing and that I have no authority to
review or grant relief in this case. I conclude that CMS is correct.

NGS, the hearing officer on reconsideration, and CMS treat Petitioner’s Medicare
Enrollment Application received by the NGS on May 4, 2009 as a new application for
enrollment. CMS Ex. 1, at 1. Pursuant to 42 C.F.R. § 424.520(d),° the effective date for
billing privileges for a physician is

> This provision was added by final rule at 73 Fed. Reg. 69,725; 69,773 (Nov. 19, 2008)
and 73 Fed. Reg. 80,304 (Dec. 31, 2008) effective January 1, 2009, and is to be codified
at 42 C.F.R. § 424.520(d).
the later of the date of filing of a Medicare enrollment
application that is subsequently approved by a Medicare
contractor or the date an enrolled physician or nonphysician
practitioner first began furnishing services at a new practice
location.

The evidence shows that NGS received Petitioner’s application on May 4, 2009, and this
fact is not disputed by Petitioner. CMS Ex. 1, at 1. Petitioner does not assert that his
effective date should be determined using the second approach of the regulation based
upon when he first began furnishing services at a new practice location. The NGS letter
to Petitioner advised Petitioner that his enrollment was actually effective April 4, 2009
rather than May 4, 2009 (CMS Ex. 2, at 1), which is inconsistent with 42 C.F.R.

§ 424.520(d), as the regulation establishes the effective date of enrollment as the date of
filing of the application. See also 73 Fed. Reg. 69,725, 69,769 (Nov. 19, 2008) (date of
filing is date Medicare contractor receives signed application that it can process to
approval). CMS offers no explanation for Petitioner being granted an effective date o:
April 4, 2009 rather than May 4, 2009 as appears to be required by the regulation and
legislative history. However, the effective date determination may have been based upon
an incorrect application of 42 C.F.R. § 521(a)(1),* which permits an enrolled physician to
bill “retrospectively” for services provided up to 30 days prior to their effective date i
circumstances precluded enrollment in advance of providing services.> CMS Ex. 5, at 2.
Petitioner does not specifically challenge the lawfulness of the new regulations at 42
C.F.R. §§ 424.520(d) and 521(a)(1). Even if Petitioner challenged the lawfulness of the
regulations, I am bound to follow the Secretary’s regulations, including 42 C.F.R.
§§ 424.520(d) and 521(a)(1), and I have no authority to find the regulations invalid.

The CMS position, stated simply, is that Petitioner’s enrollment as a supplier was not
denied and no right to hearing is triggered in this case. CMS Motion at 6-8, 10-11. The
Act only provides for a right to hearing and judicial review in the case of denial or non-
renewal of enrollment. Act § 1866(j) (42 U.S.C. § 1395ce(j)). The Secretary has
provided by regulation for a right to hearing and judicial review for both denial and
revocation of enrollment. 42 C.F.R. §§ 424.545(a); 498.3(b)(1), (5), (6), (17); 498.5(a),

4 This provision was also added by final rule at 73 Fed. Reg. 69,725; 69,768-69; 69,773;
69,939 (Nov. 19, 2008) and 73 Fed. Reg. 80,304 (Dec. 31, 2008) effective January 1,
2009, and is to be codified at 42 C.F.R. § 424.521(a)(1).

* Prior to the change in the regulations effective January 1, 2009, physicians were
permitted to retroactively bill Medicare for services furnished up to 27 months prior to
enrollment. CMS Motion at 5, n.1. Whether or not Petitioner can submit claims for
services preformed 30 days prior to April 4, 2009 under authority of 42 C.F.R.

§ 521(a)(1) is not an issue raised by the request for hearing, nor is it within my
jurisdiction for the reasons discussed hereafter.
(d), and (/)(1) and (2); 42 C.F.R. § 498.5(b) and (e). CMS acknowledges that the plain
language of 42 C.F.R. § 498.3(15) indicates that the determination of the effective date of
a Medicare provider agreement or supplier approval, is an initial determination that is
subject to hearing and judicial review. However, CMS argues that 42 C.F.R.

§ 498.3(b)(15) is not a provision applicable in the case of a supplier such as Petitioner.
CMS Motion at 12-13. Although the plain language of a regulation would normally
control, review of legislative or regulatory history is appropriate when an issue of
interpretation is raised as it is in this case. The regulatory history for 42 C.F.R.

§ 498.3(b)(15) at 62 Fed. Reg. 43,931, 43,933-34 (Aug. 18, 1997) supports the CMS
position that the provision only permits a right to hearing related to an effective date
determination for providers and suppliers subject to survey and certification or to
accreditation by an accrediting organization. Petitioner was not subject to survey and
certification or accreditation in order to enroll and qualify as a supplier participating in
Medicare. Accordingly, I conclude that 42 C.F.R. § 498.3(b)(15), creates no right for
Petitioner to request a hearing to challenge the effective date determination by CMS or its
contractor.

Finally, I note that the request for hearing in this case was filed by the practice group with
which Petitioner works and to which he reassigned his right to bill Medicare. CMS Ex.

6. The request for hearing states clearly that its purpose is to have approximately 320
claims related to services provided by Petitioner between October 1, 2008 and April 3,
2009 reconsidered for payment by Medicare. Petitioner acknowledges that I have no
jurisdiction to provide individual claim review by stating that Petitioner understands that
this can only be accomplished by changing the effective date of Petitioner’s participation
to a date on or before he began providing services to Medicare-eligible beneficiaries.
Indeed, Petitioner is correct that I have no statutory or regulatory authority to provide any
review of individual claims.

Accordingly, I conclude that Petitioner has not shown that he has a right to a hearing and
I have found no basis upon which to exercise jurisdiction and grant Petitioner review.

II. Conclusion

I conclude, based on the foregoing, that Petitioner has no right to a hearing and dismissal
of his request for hearing is appropriate pursuant to 42 C.F.R. § 498.70(b).

/s/
Keith W. Sickendick
Administrative Law Judge