Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Kamal Anjum, M.D.,
Petitioner
v.
Centers for Medicare and Medicaid Services.
Docket No. C-11-696
Decision No. CR2462

Date: November 7, 2011

DECISION DISMISSING REQUEST FOR HEARING

I dismiss the hearing request of Petitioner, Kamal Anjum, M.D. Petitioner has no
right to a hearing to challenge either the determination by First Coast Service
Options, Inc. (First Coast), a Medicare contractor, to revoke his participation in
Medicare, or its subsequent decision to reinstate Petitioner as a Medicare
participant effective February 10, 2011.

I. Background

Petitioner is a physician. He filed a hearing request, which arguably could be
construed to challenge either First Coast’s determination to revoke Petitioner’s
participation in Medicare, or its subsequent decision to reinstate Petitioner as a
Medicare participant effective February 10, 2011. At my direction, the Centers for
Medicare and Medicaid Services (CMS) filed a brief and proposed exhibits that
are identified as CMS Exhibit (Ex.) 1 - CMS Ex. 10. In its submission, CMS
moved to dismiss Petitioner’s hearing request or, alternatively, that I enter
summary judgment in CMS’s favor. Petitioner replied to the motion and filed four
proposed exhibits. These exhibits are identified as P. Ex. 1 — P. Ex. 4.'! I receive
all of the parties’ exhibits into the record.

II. Issue, Findings of Fact, and Conclusions of Law
A. Issue

The issue in this case is whether Petitioner has a right to a hearing.
B. Findings of Fact and Conclusions of Law

There is no reason to consider the merits of this case, inasmuch as the issue of
Petitioner’s hearing right is outcome determinative. For that reason, I address that
issue only and not the CMS’s alternative motion for summary judgment.

Petitioner is the sole owner of Pulmonary & Critical Care Consultants of South
Florida, P.A., a Medicare supplier. On December 22, 2009, Petitioner moved his
office from its former location to a new location. He contends — and for purposes
of this decision, I accept his representation as true — that he communicated with
CMS by telephone and by letter concerning the move. However, it is undisputed
that Petitioner did not file any of the forms required by CMS to document the
change of location until more than a year had transpired from the date of the move.
CMS Ex. 4.

On September 22 and October 14, 2010, First Coast made site visits to Petitioner’s
former business location. First Coast’s agent found that Petitioner was not doing
business at this location, and, consequently, First Coast determined to revoke
Petitioner’s Medicare billing privileges effective October 14, 2010. First Coast
sent notice of that determination to Petitioner on January 18, 2011. CMS Ex. 2.
First Coast informed Petitioner that he could submit a corrective action plan within
30 days, which would serve as a formal request to reopen First Coast’s
determination. First Coast informed Petitioner that he could also file a request for
reconsideration of the determination to revoke his billing privileges within 60
days. Id. at 2.

On February 4, 2011, Petitioner wrote to First Coast, advising it that he was
submitting a corrective action plan requesting reinstatement as a Medicare
participant. CMS Ex. 4. On March 8, 2011, Petitioner re-filed his corrective

' Shortly after Petitioner filed his pre-hearing exchange, Petitioner’s counsel called
the staff attorney who is assigned to work with me on this case and advised her
that he was contemplating supplementing Petitioner’s exchange with an affidavit
executed by Petitioner. However, Petitioner has not filed that possible exhibit.
action plan. CMS Ex. 5. In neither of these filings did Petitioner request
reconsideration. Nor did Petitioner state or suggest in either of these filings that
he was objecting to First Coast’s determination to revoke his Medicare billing
privileges. To the contrary, in his February 4, 2011 letter, Petitioner admitted
error, stating that:

This [the revocation determination] happened due to
negligence on my part and my failure to follow up with your
office after submitting the application for a change of my
practice address.

CMS Ex. 4. On May 31, 2011, First Coast accepted Petitioner’s submission and
informed him that his Medicare provider number had been revalidated. CMS Ex.
7. On August 2, 2011, First Coast notified Petitioner that he had been reinstated
into the Medicare program effective February 10, 2011, the date when First Coast
received Petitioner’s February 4, 2011 corrective action plan. CMS Ex. 8.

Separately, CMS sent letters to Petitioner on April 20 and April 22, 2011, advising
him that he had been overpaid by Medicare. CMS Ex. 9; CMS Ex. 10. The
overpayments were for claims that Petitioner submitted for items or services that
he provided during the period when his Medicare provider status was revoked.
Each of these letters informed Petitioner that he had the right to appeal CMS’s
overpayment determinations by requesting redetermination. Id.

On June 28, 2011, Petitioner sent a letter to First Coast, captioned with the
heading: “Appeal for Reconsideration of the ‘Revoke Period’... .” CMS Ex. 3 at
1. In this letter, Petitioner acknowledged that he had filed claims for services but
that he was “convinced that everything was in order... .” Jd. Petitioner
requested that First Coast reconsider its decision and “change the date of
revalidation so that there is no gap between it and the date of revocation.” /d. at 2.
The thrust of Petitioner’s letter is that he had been misled into believing that there
would be no “gap” in the period when he could submit reimbursement claims. In
other words, Petitioner argued that he was led to believe that he could continue to
claim reimbursement on dates between his receipt of First Coast’s revocation
notice and his receipt of First Coast’s decision to accept his corrective action plan.
Petitioner characterized his actions, including filing claims resulting in
overpayments, as an honest mistake by him. Petitioner did not argue that that the
revocation determination was incorrect or improper. Jd.

A determination by CMS, or one of its contractors, to revoke a provider’s
participation in Medicare is an appealable initial determination. 42 C.F.R. §
498.3. A provider has a right to challenge such a determination pursuant to the
procedures established by regulations at 42 C.F.R. Part 498. Similarly, a provider
who seeks to participate in Medicare may appeal a determination by a contractor
or CMS to certify it as of a particular effective date. 42 C.F.R. § 498.3(b)(15).
However, a determination by a contractor or CMS whether or not to reinstate a
provider whose participation was revoked is not appealable. DMS Imaging, Inc.,
DAB No. 2313, at 5-10 (2010).

As I have discussed, Petitioner did not challenge the determination to revoke his
Medicare participation at any time prior to filing a hearing request on August 4,
2011. His February communications with First Coast addressed only his intent to
correct the problem that caused his participation to be revoked.

One could reasonably construe Petitioner’s June 28, 2011 letter as constituting a
challenge to the date of reinstatement that First Coast decided was appropriate
based on Petitioner’s corrective action plan. A reinstatement determination is not
appealable because it is a discretionary determination by CMS or a contractor.
Neither CMS nor a contractor is required to accept a plan of correction from a
provider whose participation is revoked. Thus, there is no basis for an appeal
where either CMS or a contractor decides as a matter of discretion not to accept a
plan of correction. By logical extension, a decision by CMS, or a contractor, to
accept a plan of correction as of a particular date is not appealable, inasmuch as
both CMS and the contractor have the discretion not to accept the plan at all.
Thus, First Coast’s decision to reinstate Petitioner effective February 10, 2011 is
not a reviewable determination because First Coast could have simply rejected the
plan.

An administrative law judge may dismiss a request for a hearing where a party has
no right to a hearing. 42 C.F.R. § 498.70(b). Dismissal is appropriate here, to the
extent that Petitioner’s June 28, 2011 letter constitutes a challenge to the date of
his reinstatement, inasmuch as Petitioner has no right to challenge First Coast’s
decision.

Petitioner now characterizes his June 28, 2011 letter to First Coast as a “request
for reconsideration on his revocation of billing privileges.” Petitioner’s Response
at 2. In effect, Petitioner now contends that he intended to challenge First Coast’s
determination to revoke his Medicare participation. That is not an accurate
characterization of the June 28, 2011 letter. That letter was plainly a request that
First Coast redetermine the overpayments that it had assessed against Petitioner
based on the reimbursement claims that Petitioner filed during the period when his
Medicare participation was revoked. Petitioner may not now bootstrap a hearing
request challenging First Coast’s revocation determination onto a letter that he
intended to address a different issue.
But, even if that letter could be construed as a challenge to the revocation
determination, it is untimely. First Coast notified Petitioner of its determination
on January 18, 2011. Petitioner had 60 days to file a request for hearing
challenging that determination. 42 C.F.R. §498.40(a)(2). Petitioner filed his June
28, 2011 letter more than five months after he received the initial determination to
revoke his Medicare participation. Furthermore, the hearing request that Petitioner
filed with the Departmental Appeals Board on August 4, 2011, was filed about
seven months after he received the initial determination.

Obviously, what prompted Petitioner’s change of position and his current intent to
challenge First Coast’s revocation determination is the notices of overpayment that
he received from CMS. There is an administrative review process by which
Petitioner can challenge these overpayments, and, evidently, he has availed
himself of that process. See P. Ex. 3. That process is, however, separate and apart
from a challenge to the determination of noncompliance that underlies the finding
of overpayment.

Petitioner has made no showing of good cause for filing a hearing request —
whether that request is construed to be Petitioner’s June 28, 2011 letter or his
August 4, 2011 hearing request — months after the expiration of the 60 day
deadline for doing so. See 42 C.F.R. §§ 498.40(c), 498.70(c). His arguments are
primarily equitable in character. Petitioner essentially contends that he made an
honest mistake in failing to file the proper forms notifying First Coast of his office
address change and compounded his error by believing, honestly but erroneously,
that he had been reinstated retroactively to the date when his enrollment was
revoked. From all appearances, Petitioner has acted in good faith and may indeed
have made honest errors that put him in his current predicament. Unfortunately,
Petitioner’s arguments are not a basis for me to grant Petitioner a hearing.
Petitioner has not offered evidence to show that he was affirmatively misled into
believing that he should not request reconsideration. Although he asserts in his
June 28, 2011 letter and in his hearing request that he was led to believe that there
would be no problem with his billing, he does not aver that anyone — at First Coast
or at CMS - ever told him that he need not request reconsideration of the
revocation determination.

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Island Endoscopy Center, LLC,
Petitioner
v.
Centers for Medicare and Medicaid Services.
Docket No. C-11-554
Decision No. CR2460
Date: November 3, 2011

DECISION DISMISSING REQUEST FOR HEARING

I dismiss the hearing request filed by Petitioner, Island Endoscopy Center.
Petitioner has no right to a hearing inasmuch as it did not timely request
reconsideration from the April 22, 2010 determination by the Centers for Medicare
and Medicaid Services (CMS) certifying Petitioner to participate in the Medicare
program as an ambulatory surgery center effective March 22, 2010.

I. Background

Petitioner is an ambulatory surgery center that participates in Medicare. Petitioner
requested a hearing to challenge CMS’s determination to certify Petitioner as a
participating provider effective March 22, 2010. In subsequent correspondence,
Petitioner clarified its hearing request to assert that it desired to be certified
effective February 24, 2010.

The case was assigned to me for a hearing and a decision. CMS filed a motion to
dismiss and, in the alternative, for summary judgment, along with 23 proposed
exhibits that it identified as CMS Exhibit (Ex.) 1 - CMS Ex. 23. Petitioner
initially failed to reply to CMS’s motion. | then sent an order to show cause to
Petitioner, directing it to reply to the motion. Petitioner responded by filing a copy
of a letter dated April 22, 2010, and signed by Steven Blaum, which was sent to
Petitioner by CMS notifying Petitioner that its effective date of participation in
Medicare would be February 24, 2010. Petitioner did not identify this letter as an
exhibit. I identify this letter as P. Ex. 1. I then directed CMS to provide me with
an affidavit, or other documentation, explaining this letter. CMS responded with
an October 26, 2011 declaration by Sherry Mohamed, a CMS employee, along
with three attachments identified as CMS Exs. 24-26. I receive into evidence
CMS Ex. 1— CMS Ex. 26, P. Ex. 1, and the declaration of Sherry Mohamed,
which I identify as CMS Ex. 27.

II. Issue, Findings of Fact, and Conclusions of Law
A. Issue

The issue in this case is whether Petitioner has shown good cause for untimely
requesting reconsideration from CMS’s initial determination.

B. Findings of Fact and Conclusions of Law

It would be an understatement to say that this case has a tortured history.
Petitioner has made multiple filings with CMS and with National Government
Services (NGS), a Medicare contractor to which CMS has delegated the authority
to review applications for provider and supplier participation in the Medicare
program. Only some of these filings are relevant to this case. However, for
purposes of clarity, I summarize all of Petitioner’s filings as follows.

e On April 22, 2009, Petitioner submitted an application to NGS for
participation in Medicare. On May 8, 2009, NGS acknowledged receiving
this application. However, in a letter to Petitioner on that date, NGS told
Petitioner that the application was incomplete and that Petitioner would
have to submit revisions and additional supporting documentation. NGS
told Petitioner that it would be obligated to reject Petitioner’s application,
unless Petitioner complied with NGS’s request for supplemental
information and documentation by June 5, 2009. CMS Ex. 4.

e¢ On June 11, 2009, Petitioner submitted a new participation application to
NGS. CMS Ex. 5.

e On June 12, 2009, NGS advised Petitioner that it was closing its processing
of Petitioner’s April 22, 2009 participation application because Petitioner
had failed to provide the supplemental information and documentation
requested by NGS. CMS Ex. 6.
On June 19, 2009, NGS informed Petitioner that Petitioner’s June 11, 2009
application could not be processed because it was missing information or
was materially incomplete. NGS advised Petitioner to correct and resubmit
its application. CMS Ex. 7.

On July 27, 2009, Petitioner filed a third application for participation.
CMS Ex. 8.

On August 10, 2009, NGS notified Petitioner that it was denying
Petitioner’s July 27, 2009 application. NGS told Petitioner that it was
denying the application because Petitioner had not complied with New
York State licensing and registration requirements. CMS Ex. 9.
Additionally, CMS advised Petitioner that it could request reconsideration
of this determination by filing a request for reconsideration within 60 days.
Petitioner did not request reconsideration.

Petitioner filed a fourth application for participation on October 5, 2009.
CMS Ex. 12.

On October 13, 2009, NGS informed Petitioner that it could not process the
October 5 application because it was missing information or was materially
incomplete. NGS again informed Petitioner that it had 30 days to complete
its application. CMS Ex. 13.

On October 26, 2009, Petitioner filed a fifth application for participation.
CMS Ex. 14.

On November 11, 2009, NGS notified Petitioner that it was rejecting
Petitioner’s October 26, 2009 application. CMS Ex. 15.

On November 16, 2009, Petitioner filed a sixth application for
participation. CMS Ex. 16.

On April 22, 2010, CMS notified Petitioner that its application (evidently,
the November 16, 2009 application) was approved. CMS sent two letters to
Petitioner on that date. One letter advised Petitioner that its effective date
of participation was February 24, 2010. P. Ex. 1. Another letter is
identical, with the exception of the signature, but advised Petitioner that its
effective date of participation was March 22, 2010. CMS Ex. 17.
e¢ On June 9, 2010, NGS sent a letter to Petitioner confirming approval of the
November 16, 2009 application and stating that Petitioner’s effective date
of participation is March 22, 2010. CMS Ex. 18.

e¢ On October 4, 2010, Petitioner submitted yet another application for
participation. In an accompanying letter, Petitioner requests that its
effective date of participation in Medicare be established as September 10,
2009, the date when Petitioner first began seeing Medicare beneficiaries at
its facility. CMS Ex. 19.

e On April 27, 2011, NGS rejected the October 4, 2010 application. NGS
treated the October 4 application as a reconsideration request but denied it
on the ground that Petitioner’s application had been approved on June 9,
2010. CMS Ex. 20.

e On May 2, 2011, NGS received a letter from Petitioner dated April 8, 2010,
in which Petitioner formally requested reconsideration of the determination
that March 22, 2010 is its effective date of participation. CMS Ex. 21.

e On May 24, 2011, NGS notified Petitioner that it was rejecting Petitioner’s
request on the ground that it was untimely filed. CMS Ex. 22.

As I have stated, much of this procedural history is irrelevant. Petitioner did not
request reconsideration of any of NGS’s or CMS’s actions prior to the April 22,
2010 CMS determination establishing March 22, 2010 as Petitioner’s effective
date of participation in Medicare. Consequently, all of the actions taken by NGS
or CMS prior to April 22, 2010 are administratively final and non-reviewable.

That leaves open the issue of CMS’s April 22, 2010 determination (confirmed by
NGS on June 9, 2010). Petitioner did not take issue with that determination until
October 4, 2010, when it submitted an application for participation and requested
that Petitioner’s effective date of participation be September 10, 2009 rather than
March 22, 2010, the date established by CMS. If one interprets this October 4
application to be a request for reconsideration of CMS’s determination, then it was
filed by Petitioner more than five months after the April 22 notification and nearly
four months after NGS’s June confirming letter. Treating the request for
reconsideration that was received by NGS in May 2011 as a separate request, that
request was sent by Petitioner about a year after CMS sent its April 22, 2010
notice, and nearly a year after NGS sent its June 9, 2010 confirmation.

All of these requests for reconsideration were untimely filed. A party has a right
to reconsideration of an adverse initial determination only if it files that request
within 60 days of receiving notice of the determination. 42 C.F.R. § 498.22(b)(3).
The 60-day time period may be extended in the case of an untimely filing but only
on a showing of good cause for a failure to file timely. If the request for
reconsideration is not timely filed, or if the deadline for filing is not extended, then
the adverse initial determination becomes administratively final and may not be
appealed.

Petitioner made no showing of good cause for untimely filing its reconsideration
requests. Indeed, it has not provided me with any explanation for its untimely
filing. CMS’s brief moving for dismissal of this case explicitly asserted that
Petitioner filed its hearing requests untimely and put Petitioner on notice that it
had to show good cause if Petitioner sought to prove a reasonable basis for
delaying its filings. Despite that, Petitioner produced nothing in response.

I have considered whether the two letters that CMS sent to Petitioner on April 22,
2010 may have misled Petitioner into not filing its request for reconsideration
timely. CMS Ex. 17; P. Ex. 1. The letters were confusing in that they are
identical except that they give Petitioner different effective dates of participation.
One letter states that Petitioner’s effective participation date is March 22, 2010,
and the other states February 24, 2010 as the effective date.'

However, as confusing as these two letters may have been, they were not
materially misleading, and they are no basis for finding good cause for Petitioner’s
untimely filing. Petitioner was plainly dissatisfied with both of the effective dates
stated in the two letters because, in October 2010, when Petitioner finally asked
for reconsideration, it requested a September 2009 effective participation date.”
Given that dissatisfaction, there is nothing in either of the two letters — or in
NGS’s June 9, 2010 confirming letter — that would have induced a reasonable
entity to delay filing a reconsideration request.

Petitioner’s failure to show good cause for its untimely finding means that the
determination of a March 22, 2010 effective participation date is administratively
final. Petitioner has no right to a hearing in this case, and, therefore, I dismiss its
hearing request.

/s/
Steven T. Kessel
Administrative Law Judge

‘CMS explains the discrepancy to my satisfaction as an administrative error that
was immediately corrected. CMS Ex. 27.

* Now, Petitioner says it would be content with February 24, 2010.


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Doris Klein,
Petitioner.
v.

Social Security Administration.
Docket No. C-11-531
Decision No. CR2459

Date: November 2, 2011
DECISION

Petitioner, Doris Klein, is indebted to the United States in the amount of $5,468.75, plus
any interest, penalties, fees, and costs. The debt may be collected by administrative wage
garnishment (AWG), by administrative offset, or in any other manner permitted by law.

I. Jurisdiction

The Department of the Treasury (Treasury), Financial Management Service, notified
Petitioner by a “Notice of Intent to Initiate Wage Garnishment” dated April 27, 2011
(Notice) that she was indebted to the Social Security Administration (SSA) in the amount
of $8,030.65. The Notice advised Petitioner that if she did not pay her debt or enter a
repayment plan by May 27, 2011, Treasury would issue a wage garnishment order to
Petitioner’s employer to collect the debt by deduction of up to 15 percent from her
disposable pay per pay period until the debt is paid in full. The Notice advised Petitioner
that she had the right to inspect records related to the debt and to request a hearing by
May 18, 2011. SSA Exhibit (SSA Ex.) 9. On May 19, 2011, Petitioner requested a
earing. SSA Ex. 11.

On June 20, 2011, the Civil Remedies Division (CRD) of the Departmental Appeals
Board (DAB), Department of Health and Human Services, received Petitioner’s hearing

request. The hearing request was forwarded to the CRD, attached to a letter, dated June
6, 2011, from Edwina Bailey, Financial Management Analyst, Debt Management Team,
SSA. The request for hearing was forwarded to the DAB for hearing and decision
pursuant to an interagency agreement under which SSA refers cases involving the
collection of debt from certain current SSA employees not represented by the American
Federation of Government Employees (AFGE) and separated SSA employees
(Interagency Agreement, §[ I.B).

The matter was assigned to me for hearing and decision on June 21, 2011.

On June 23, 2011, I issued an Order to File Evidence and Written Argument. I advised
the parties that it was not clear from the documents submitted by SSA whether or not
Petitioner was a current or former SSA or federal employee. I ordered SSA to answer, by
July 9, 2011, five questions regarding Petitioner’s status, as well as answer whether
Petitioner’s hearing request was timely filed. I required SSA to file by July 25, 2011, any
documents upon which it relied to show the existence of the debt that Petitioner owed.
Petitioner was given until August 25, 2011, to respond and submit documents and
argument regarding the existence of the indebtedness or any other defense.

On July 8, 2011, SSA timely responded that Petitioner was not currently a federal
employee and not currently an SSA employee or a member of a collective bargaining unit
represented by AFGE. SSA also responded that Petitioner’s hearing request was not
timely filed. SSA did not explain its position that Petitioner’s request for hearing was not
timely filed, though I note that the date on the hearing request is one day after the
deadline for filing a hearing request set by the Treasury Notice. SSA did not address the
issue of untimely filing in its brief or otherwise assert that untimely filing deprived me of
jurisdiction. The Interagency Agreement ( II.A.12), requires that I apply the SSA debt
collection regulations at 20 C.F.R. Part 422 when reviewing requests for hearing related
to debt collections from former SSA employees, excluding Social Security program debt
which is not within my jurisdiction under the Interagency Agreement. Pursuant to SSA
debt collection regulations governing administrative offset and AWG, the debtor has 60
days to request review of an alleged debt, except when offset against federal salary is
proposed, in which case review must be requested in 30 days. 20 C.F.R. §§ 422.425(a),
422.310(c)(3)(ii) and (c)(6). AWG is proposed by SSA in this case not administrative
offset and the 60-day period applies. The Treasury Notice is dated April 27, 2011, and
Petitioner’s hearing request was faxed to Treasury on May 19, 2011, well within the 60
days provided by SSA regulations for collection of a debt from a former government
employee. Accordingly, I conclude that Petitioner’s request for hearing was timely filed.
If Petitioner’s request for hearing was not timely filed, SSA regulations require that the
debt be reviewed but the regulation does not require that SSA stay its collection action
pending completion of my review. 20 C.F.R. §§ 422.317(a)(2), 422.425(a). I conclude,
based upon evidence submitted by SSA, that Petitioner is a former SSA employee and
this case is not subject to the requirements of 5 U.S.C. § 5514 (which applies only to

offset of the federal salary of a current federal employee). I also conclude that this case is
properly subject to my review pursuant to the Interagency Agreement.

On July 22, 2011, SSA timely filed its brief (SSA Br.) with SSA Exs. 1 through 11. No
response has been received from Petitioner. Therefore, on September 6, 2011, I issued an
order for Petitioner to show cause by September 21, 2011 why her request for hearing
should not be dismissed for abandonment or why I should not proceed to a decision based
upon SSA’s filings. No response has been received from Petitioner. I proceed to a
decision based upon the current record. SSA Exs. | through 11 are admitted without
objection from Petitioner.

II. Discussion
A. Issues

Whether Petitioner is indebted to the government and, if so, in what amount;
and

Whether collection of any debt may be accomplished by AWG or
administrative offset?

B. Law Applicable

The Interagency Agreement provides that debt collection cases against separated SSA
employees are governed by 20 C.F.R. Part 422. Administrative offset procedures are at
20 C.F.R. §§ 422.310, .315, and .317. AWG procedures are at 20 C.F.R. § 422.401
through .445.

Before collection of any debt by administrative offset the alleged debtor must be given
written notice which explains: (1) the nature and amount of the debt; (2) that SSA has
determined the debt is overdue; (3) that the debt will be referred to Treasury for offset
after either 30 days from the date of the notice in the case of proposed federal salary
offset or 60 calendar days from the date of the notice for all other proposed offsets, unless
the debt is paid in full, the debtor enters an installment payment plan, or the debtor
requests review of the debt; and (4) that the debtor has the right to review SSA records
related to the alleged debt. The regulations recognize that 5 U.S.C. § 5514 controls in a
case involving administrative offset against the federal salary of a current federal
employee. 20 C.F.R. § 422.310(c). If SSA seeks to recover a debt using AWG, the
debtor must be notified of: (1) the nature and amount of the debt; (2) that SSA has
determined the debt is past due; (3) the payment schedule or the amount the employer
may withhold from disposable pay each payday; (4) that the debtors employer will be
ordered to withhold money from the debtors pay not sooner than 60 days from the date of
the notice, unless the debtor enters an installment payment agreement or requests review

of the debt or the repayment schedule stated in the notice; and (5) that the debtor may
inspect and copy records related to the debt. 20 C.F.R. § 422.405(b).

The debtor is required to submit evidence with the request for review showing that the
debt is not owed or that SSA has no right to collect the debt. 20 C.F.R. §§ 422.310(c)(6),
422.405(b)(6), 422.425(a). SSA stays collection of the debt by administrative offset or
AWG, if a request for review is timely filed. 20 C.F.R. §§ 422.317(a)(1), 422.425(a).

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

My conclusions of law are set forth in bold followed by a statement of the pertinent facts
and my analysis.

1. Petitioner is indebted to the government in the amount of $5,468.75,
plus any interest, penalties, fees, and costs.

2. Petitioner received adequate notice of the debt and her rights.
3. Collection by administrative offset or AWG is permissible.
a. Facts

The unrebutted evidence shows that SSA removed Petitioner from her position as a
Contact Representative effective September 1, 2006, due to her numerous incidents of
absence without leave (AWOL). SSA Ex. 1. A Leave and Earning Statement (LES) for
the period ending September 2, 2006, the day after her termination, shows that when she
was fired Petitioner had been advanced 68 hours of annual leave and 232 hours of sick
leave, leaving her with a total negative leave balance of 300 hours when she was
terminated. SSA Ex. 2. The evidence shows that Petitioner was advanced 68 hours of
annual leave in May 2006 and June 2006, pay periods 12 and 13. The evidence shows
she was advanced 135.25 hours of sick leave in 2005 and 96.75 hours of sick leave in
April and May of 2006, pay periods 10 and 12. SSA Ex. 3. In November 2006, SSA’s
payroll provider computed the monetary value of Petitioner’s 300 hours of advanced sick
and annual leave to be $5,468.75. SSA Ex. 4.

The evidence presented by SSA includes a November 2, 2007 letter from SSA to
Petitioner at the address listed on her LES from September 2, 2006. The SSA letter
notified Petitioner that she was indebted to SSA in the amount of $5,468.75; that if
payment was not made interest and other charges would be assessed; and that collection
could be by AWG or administrative offset. The SSA letter offered Petitioner four options
to avoid referral of the debt to Treasury for collection, she could: pay the full amount of
the debt; enter a repayment plan and repay according to the plan; provide evidence to
show she did not owe the debt or that SSA did not have the right to collect it; or request

a waiver of the debt. SSA also advised her that she had a right to review of the debt and a
right to inspect SSA’s records regarding the debt. SSA Ex. 5.

The evidence includes a letter dated March 24, 2008, from SSA to Petitioner, which was
also sent to the address indicated on Petitioner’s LES. The SSA letter advised Petitioner
that because she had not responded to the November 2, 2007 letter, her debt was
delinquent. The letter advised Petitioner that, if she failed to pay her debt within 15 days,
er debt would be referred to Treasury for offset of any future payments that might be
due her from the government. SSA Ex. 7. The debt was referred to Treasury on about
August 22, 2008. The amount of the debt referred for collection was $5,468.78, plus
$158.22 in interest and a penalty of $237.33, a total debt of $5,864.33. According to
SSA, the interest rate applicable is four percent and the penalty rate is six percent. SSA
Ex. 8.

The Treasury letter dated April 27, 2011, which was sent to a different address than that
on Petitioner’s September 2, 2006 LES, shows that the debt had increased to $8,030.65.
SSA Ex. 9. As of July 6, 2011, the debt had increased to $8,168.94, which included the
principal of $5,468.78 and $2700.16 in interest, penalties, and fees. SSA Ex. 10.

b. Analysis

Petitioner failed to submit any evidence with her request for hearing and she failed to
respond to the SSA brief and evidence. Petitioner argues in her request for hearing that
the Treasury Notice was the first notice she received regarding the alleged debt. She
alleges that she does not owe the debt or, at least, not the entire amount. She argues that
when she left SSA in 2006 any amount for advanced leave in 2005 was repaid and the
remaining leave was to be collected from her Thrift Savings Plan account. She alleges
that she has been at her current job for less than 12 months, following eight months of
unemployment, and six months of unemployment in the previous year. SSA Ex. 11.

Petitioner’s assertion that the April 27, 2007 Treasury Notice is the first notice she
received of the debt, is not grounds for relief, even if true. The SSA notices in evidence
from 2007 and 2008, which were mailed to the address on Petitioner’s last LES, raise an
inference that those letters were mailed and received by Petitioner. The evidence would
have been more persuasive had SSA obtained and maintained evidence of actual receipt
of the notices, such as certified or registered mail receipts. But, no regulation requires
that notices be sent certified or registered mail. Petitioner’s mere assertion that the letters
were not received is insufficient alone in this case to overcome the inference that the
letters were mailed and received, particularly because Petitioner’s denial is in her request
for hearing which is not even signed by her. Further, the statement in her request for
hearing that she believed that any amount owed for advanced leave in 2005 had been
repaid and that the amount remaining was to be collected from her Thrift Savings Plan
account shows that Petitioner had knowledge that she was indebted to SSA for advanced

leave. Petitioner’s final LES for the pay period ending on September 2, 2006, also
clearly shows that she had a negative annual leave balance of 68 hours and a negative
sick leave balance of 232 hours due to advances of leave. SSA Ex. 2. Even if I accept
that Petitioner had no knowledge of the amount of her debt or her rights related thereto
prior to the Treasury Notice that is no grounds for any relief for Petitioner. The Treasury
Notice satisfies the notice requirement under both the administrative offset regulations
and the AWG regulations. SSA has given Petitioner the documents supporting the debt.
Petitioner has been accorded the rights to contest the debt and for review of the debt.
Accordingly, I conclude that Petitioner has been accorded all the process due her under
the SSA regulations. Any defects in SSA notices caused her no prejudice as she was
aware of the debt and failed to follow-up with SSA to protect herself from accruing
interest and penalties. Treasury Department regulations specify the process to be
accorded debtors by an agency before effectuation of either AWG or administrative
offset. 31 C.F.R. §§ 285.11, 901.3. I conclude that the more extensive requirements of
the Treasury Department regulations are also satisfied by the process accorded in this
case.

I conclude based upon the foregoing facts that Petitioner is indebted to the government in
the amount of $5,468.75 for negative leave balances at the time of her termination
totaling 300 hours due to advances of sick and annual leave. Petitioner has presented no
credible evidence that she repaid any portion of the debt. Petitioner has also presented no
evidence or argument that would support a conclusion that SSA has no right to collect the
debt. Petitioner’s debt is subject to accruing interest, penalties, and fees. The total debt,
with interest, penalties, and fees, was calculated as $ 8,030.65 on April 27, 2011 (SSA
Ex. 9) and $8,168.94 on July 6, 2011 (SSA Ex. 10). Petitioner has presented no evidence
or argument to show that the calculated totals are in error.

Petitioner asserts in her hearing request that she has been at her current job for less than
12 months following eight months of unemployment, and six months unemployment in
the previous year. SSA Ex. 11. I construe Petitioner’s assertion to be an attempt to fit
within the exceptions to the use of AWG listed in 20 C.F.R. § 422.403(b), specifically the
second exemption which provides that, if a debtor was involuntarily separated from
employment, SSA or Treasury will not order the new employer to withhold any amount
from disposable pay until the employment has continued for at least 12 months. The
regulation places the burden on the debtor to inform SSA of the involuntary separation
from employment. 20 C.F.R. § 422.403(b)(2). In this case, Petitioner provided no
credible evidence that she was involuntarily terminated from her last job. Petitioner has
also not provided credible evidence to show when she started her current job.
Accordingly, I conclude that Petitioner has not shown that the exception is applicable in
her case. The other four exceptions established by the regulation also have no application
to Petitioner’s case, and she does not assert that they do. The administrative offset
regulations do not establish exceptions like those found in the AWG regulations. 20
CFR. § 422.310.

Although Petitioner did not specifically argue that she was unable to pay the debt due to
financial hardship, her statements that she was unemployed for a period could be
construed as a statement that she cannot repay the debt due to financial hardship. The
amount collected from disposable pay may be adjusted due to financial hardship. 20
C.F.R. § 422.415. The regulation requires that the individual requesting relief give
evidence of his or her financial resources and expenses. The regulation also provides that
an individual may ask at “any time to reduce the amount [of AWG] due to financial
hardship,” although at no time will it be reduced below $10 per payday. The April
Treasury Notice did not state the amount to be deducted from monthly disposable pay by
AWG as it was a notice of intent to initiate AWG and not the AWG order itself. The
April Treasury Notice informed Petitioner that if she did not pay her debt or enter into a
repayment plan or request a hearing an AWG order might issue to her employer that
could require her employer to deduct up to 15 percent from her disposable pay each pay
period until her debt is paid in full. If Petitioner has an issue of financial hardship she
should address that issue with SSA and the Treasury. Financial hardship is not a basis for
me to relieve Petitioner of her debt.

III. Conclusion

For the foregoing reasons, I conclude that Petitioner is indebted to the government in the
amount of $5,468.75, plus any interest, penalties, fees, and costs. The debt is subject to
collection by AWG or in any manner permitted by law. 31 C.F.R. § 285.11(b)(4), (b)(6).

/s/
Keith W. Sickendick
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Mission Regional Hospital Medical Center,
Petitioner
v.
Centers for Medicare and Medicaid Services.
Docket No. C-11-446
Decision No. CR2458

Date: November 2, 2011

DECISION

Petitioner, Mission Regional Hospital Medical Center, appeals the Medicare enrollment
determination of the Centers for Medicare and Medicaid Services (CMS) and argues that
Petitioner’s Medicare enrollment date for its newly acquired Laguna Beach campus
should be effective from July 1, 2009. However, I find the undisputed facts in this case
support a March 18, 2010 effective date, which is based on when the Joint Commission, a
national accrediting organization with Medicare deeming privileges, completed a

successful survey of the new acquisition. Therefore, I grant CMS’s Motion
Judgment and deny Petitioner’s Cross-Motion for Summary Judgment.

I. Background

Petitioner is a Medicare-approved acute care hospital located in Mission Viej

or Summary

9,

California. On July 1, 2009, Petitioner acquired the assets of another Medicare-approved

hospital, South Coast Medical Center (South Coast), located in Laguna Beac!

, California.

CMS Exs. 2, 4, 6; P. Ex. 9. While Petitioner acquired its assets, Petitioner expressly
declined to accept South Coast’s outstanding liabilities under South Coast’s existing
Medicare provider agreement. P. Ex. 9, at 1; CMS Ex. 2, at 89-90. Petitioner treated the

assets of South Coast, which Petitioner planned to operate under Petitioner’s

licenses and

accreditations, as a separate campus of its hospital at Mission Viejo. P. Ex.

0, at 2.
On June 5, 2009, Petitioner submitted an application to enroll its new campus under
Petitioner’s Medicare provider number and requested an effective date of July 1, 2009,
the date of the finalization of the asset acquisition. CMS Ex. 2. Petitioner believed that
CMS would allow Petitioner to bill Medicare starting July 1, 2009 for services rendered
at the newly acquired campus because Petitioner simply would be adding a new location
to its provider number. P. Ex. 9, at 2; P. Ex. 2, at 1-2.

The Joint Commission had previously accredited Petitioner’s Mission Viejo location
effective May 9, 2009. P. Ex. 6, at 1. Prior to the asset acquisition, the Joint
Commission had also accredited South Coast Medical Center. P. Ex. 5, at 1. On
December 15, 2009, the Joint Commission sent South Coast Medical Center a letter
stating that the Laguna Beach campus, formerly known as South Beach Medical Center,
had been extended accreditation under Petitioner’s Mission Viejo accreditation,
contingent upon a successful completion of an extension survey. Jd. The Joint
Commission also informed South Coast Medical Center that, as a result of the
acquisition, South Coast Medical Center will be listed as not accredited effective
December 31, 2009. Id.

By letter dated February 10, 2010, CMS notified Petitioner that, where a different entity
acquires ownership of a Medicare certified provider, CMS assigns the provider
agreement only if the new owner accepts the liabilities as well as the assets associated
with the agreement. P. Ex. 8, at 1. Unless the new owner assumes the former owner’s
provider agreement, including both the assets and the liabilities, CMS will terminate the
former owner’s provider agreement. Jd. CMS regards this as a voluntary termination.
Id. Once termination occurs, a full Medicare certification survey of the previously
certified facility is required as a prerequisite to billing Medicare. Id. CMS notified
Petitioner that it may not bill Medicare for services provided at the new location until the
State survey agency, or a Medicare deemed accrediting organization, has completed a
Medicare certification survey, and CMS has determined that all applicable Medicare
requirements have been met. Jd.

On March 18, 2010, the Joint Commission completed the extension survey for the
Laguna Beach campus. CMS Ex. 7, at 1. Based on a successful survey, the Joint
Commission provided accreditation to the Laguna Beach campus effective March 18,
2010. Id. By letter dated March 10, 2011, CMS reaffirmed that the effective date of
Petitioner’s Laguna Beach campus for certification and reimbursement was March 18,
2010, the date that the Joint Commission completed a successful survey of the Laguna
Beach campus. P. Ex. 8. The March 10, 2011 letter provided Petitioner appeal rights to
the Departmental Appeals Board (DAB).

On May 6, 2011, Petitioner filed a hearing request with DAB’s Civil Remedies Division.
An Acknowledgment and Pre-hearing Order was sent to the parties on May 13, 2011. On
June 17, 2011, CMS filed a Motion for Summary Judgment and brief (CMS Br.),
accompanied by nine proposed exhibits (CMS Exs. 1-9). On August 11, 2011, Petitioner
filed Petitioner’s Pre-Hearing Brief, Response to CMS’s Summary Judgment Motion, and
Cross-Motion for Summary Judgment (P. Br.), accompanied by 10 proposed exhibits (P.
Exs. 1-10). Absent any objection, I admit all proposed exhibits into evidence.

IL. Issue

The issue in this case is whether CMS had a legitimate basis for determining that March
18, 2010 was the effective date of Medicare enrollment for Petitioner’s newly acquired
medical campus.

III. Discussion

My findings of fact and conclusions of law are set forth in italics and bold in the
discussion captions of this decision.

a. This case is appropriate for summary judgment.

CMS argues that it is entitled to summary judgment. The DAB Board Members (Board)
explained the standard for summary judgment:

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... . 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. . . . To defeat an adequately supported
summary judgment motion, 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. . . . In
determining whether there are genuine issues of material fact for
trial, the reviewer must view the evidence in the light most favorable
to the non-moving party, drawing all reasonable inferences in that
party’s favor.

Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300, at 3 (2010) (citations omitted).
An Administrative Law Judge’s (ALJ’s) role in deciding a summary judgment motion
differs from its role in resolving a case after a hearing. The ALJ should not assess
credibility or evaluate the weight of conflicting evidence. Holy Cross Vill. at Notre
Dame, Inc, DAB No. 2291, at 5 (2009).
Both parties agree that there are no material facts in dispute, and each party has moved
for summary judgment. Specifically, the parties concur that Petitioner did not accept the
liabilities of South Coast. Therefore, as explained below, summary judgment is
appropriate in this matter.

b. South Coast’s existing Medicare provider agreement did not transfer to
Petitioner because Petitioner did not accept South Coast’s liabilities.

For purposes of Medicare certification and payment, a change of ownership occurs upon
“the merger of the provider corporation into another corporation,” and, when such a
change of ownership occurs, “the existing provider agreement will automatically be
assigned to the new owner.” 42 C.F.R. § 489.18(a)(3), (c). The surviving owner must
accept assignment of all applicable statutes and regulations and the terms and conditions
under which the provider agreement was originally issued, as well as all outstanding
liabilities associated with the agreement, including Medicare overpayments. U.S. v.
Vernon Home Health, Inc. 21 F. 3d 693, 695 (5th Cir. 1994), cert denied, 513 U.S. 1015
(1994) (holding that, if an entity accepts assignment of the provider agreement, federal
requirements necessitate an entity to assume the overpayment liabilities that go along
with the provider agreement).

In this case, Petitioner expressly declined to accept South Coast Medical Center’s
outstanding liabilities, including those liabilities under South Coast Medical Center’s
existing Medicare provider agreement. P. Ex. 9, at 1; CMS Ex. 2, at 89-90. Because of
this, South Coast’s provider agreement did not transfer over to Petitioner, and Petitioner
does not dispute that it did not acquire South Coast’s provider agreement. Instead, CMS
considered South Coast’s provider agreement terminated at the time the asset acquisition
on July 1, 2009 was finalized. P. Ex. 8, CMS Ex. 9.

G The effective date of Medicare enrollment for Petitioner’s acquisition is
governed by the date the accrediting organization completed its survey.

At the time of these events, 42 C.F.R. § 489.13(d) governed the effective date of
Petitioner’s new acquisition. This section provided:

(d) Accredited provider or supplier requests participation in the Medicare
program—

(1) General rule. If the provider or supplier is currently accredited by a national
accrediting organization whose program had CMS approval at the time of the
accreditation survey and accreditation decision, and on the basis of accreditation,
CMS has deemed the provider or supplier to meet Federal requirements, the
effective date depends on whether the provider or supplier is subject to
requirements in addition to those included in the accrediting organization’s
approved program.

(i)Provider or supplier subject to additional requirements. If the provider or
supplier is subject to additional requirements, the effective date of the
agreement or approval is the date on which the provider or supplier meets all
requirements, including the additional requirements.

(ii)Provider or supplier is not subject to additional requirements. For a provider or
supplier that is not subject to additional requirements, the effective date is the date
of the provider’s or supplier’s initial request for participation if on that date the
provider or supplier met all Federal requirements.

(2) Special rule: Retroactive effective date. If the provider or supplier meets
the requirements of paragraphs (d)(1) and (d)(1)(i) or (d)(1)(ii) of this section,
the effective date may be retroactive for up to one year to encompass dates on
which the provider or supplier furnished, to a Medicare beneficiary, covered
services for which it has not been paid.

42 C.F.R. § 489.13(d)(2009) (emphasis added).!

Petitioner argues that 42 C.F.R. § 489.13(d)(1)(i) applies in this matter because it was
subject to the additional requirement of the submission of a Medicare application for a
provider’s change of enrollment to include the new acquisition. P. Br. at 8. In its
Medicare application, Petitioner requested an effective date of July 1, 2009, the date it
finalized the asset purchase transaction.” Id.

l agree that 42 C.F.R. § 489.13(d)(1)(i) applies in this matter. However, contrary to
Petitioner’s position that it met all federal requirements on the transaction closing date of
July 1, 2009 (or in the alternative on July 17, 2009), I find that not only is the acquisition
subject to CMS application requirements but also subject to the accreditation
requirements that were not fulfilled until March 18, 2010.

"42 C.E.R. § 489.13 was amended to delete subpart (d) in August 2010.

> Petitioner alternatively argues that, at the latest, the effective date is July 17, 2009, the
date that the CMS contractor approved the enrollment application. CMS Ex. 3; P. Br. at
8 n.2. It is interesting to note, however, the Medicare contractor’s July 17, 2009 letter
specifically states that, “[i]f this application is for an additional location, please note that
this letter should not be construed as a determination that the additional practice location
meets the provider-based requirements . . . [a] separate recommendation will be made
regarding that status.” CMS Ex. 3 (emphasis in the original).
To qualify for Medicare certification as a Medicare provider, a hospital must meet the
conditions of participation set forth at 42 C.F.R. Part 482. With certain exceptions not
relevant here, entities that the Joint Commission accredits “are deemed to meet all of the
Medicare conditions of participation.” 42 C.F.R. § 488.5(a). On December 15, 2009, the
Joint Commission wrote South Coast stating that it understood that Petitioner had
acquired South Coast, now known as the Laguna Beach campus, and would provide
accreditation to the new site contingent upon the successful completion of an
unannounced extension survey to be conducted of the Laguna Beach location. P. Ex. 5.
The December 15, 2009 letter stated that all programs under South Coast will be listed as
not accredited effective December 31, 2009, as a result of Petitioner’s ’s acquisition of
South Coast, and that the Joint Commission would notify CMS regarding the change in
accreditation and deemed status. /d. The letter further explained that CMS “will initiate
appropriate action regarding your continued Medicare participation.” Jd.

The Joint Commission provided accreditation to Petitioner’s newly acquired site based on
a successful on-site survey verifying compliance with applicable health and safety
requirements as of March 18, 2010. CMS Ex. 7. Therefore, I find that Petitioner’s
acquisition first met all additional federal requirements, pursuant to 42 C.F.R. § 489.13
(2009), on March 18, 2010, and its provider agreement became effective on that date. Id.

Alternatively, even if Petitioner accepts the effective date of March 18, 2010, Petitioner
argues that the acquisition should be eligible to bill Medicare from July 1, 2009, under 42
C.F.R. § 489.13(d)(2)(2009). P. Br. at 9. Petitioner explains that it qualifies for a
retroactive effective date (within a one-year period preceding approval) back to the date it
provided Medicare covered services to Medicare beneficiaries for which it has not been
paid. P. Br. at 9. Petitioner relies on West Norman Endoscopy Center, DAB No. 2331
(2010) to support its argument that the Board could decide this and not necessarily rely
on the discretion of CMS to allow retroactive billing. Id.

Section 489.13(d)(2)(2009) uses the word “may” and gives CMS discretion to grant a
retroactive certification of up to one year. I find CMS was authorized to exercise its clear
discretion not to grant retroactive certification, considering CMS had a longstanding
policy not to allow retrospective billing when there was a change in ownership without
assumption of the seller’s provider agreement. CMS Ex. | (Survey and Certification
Memorandum S&C 09-08 (October 17, 2008)). I note that CMS asserts it never
exercised its discretion to grant retroactive effective dates in cases involving the
acquisition of assets where the purchaser failed to accept the seller’s liabilities. CMS Br.
at 4n.1. West Norman Endoscopy is not analogous to this case because, when the Board
granted retroactive billing in West Norman Endoscopy, the Board specifically
acknowledged that the petitioner was already accredited at the time petitioner provided
services for which the Board found it was retroactively eligible to bill Medicare. See
West Norman Endoscopy Ctr., DAB No. 2331, at 11.

I also note that the discretion to provide retroactive payment has since been eliminated in
the version of the regulations amended August 16, 2010. 42 C.F.R. § 489.13 (2010).
The preamble to that updated version of the regulations explains the reason for the
revision was to further legitimize CMS’s longstanding effective date policy:

Under CMS regulations at 42 CFR 489.18(c), a “change of
ownership” includes accepting assignment of the seller's existing
provider agreement or supplier approval. Section 489.18(d) states
that the provider or supplier continues to be subject to the same
statutes and regulations, and to the terms and conditions under which
it was originally issued. This means that the new owner receives the
assets and liabilities associated with that agreement or approval. This
has proven to be an important tool in protecting the Medicare Trust
Funds through continuity in the ability to recover outstanding
overpayments.

Under that policy, if a buyer of a Medicare-participating facility
chooses not to accept assignment of the provider agreement or
supplier approval, the provider agreement or supplier approval
terminates. Then, the new owner must be treated as an initial
applicant to the Medicare program. In this situation, Medicare will
not reimburse the provider or supplier for services it provides before
the date on which the provider or supplier qualifies as an initial
applicant.

Any requirement to make payments retroactive to the date of a State
survey or accreditation decision, despite the fact that all other
Federal requirements may not yet have been met, could provide an
incentive for more buyers to refuse assumption of the seller's
provider agreement or supplier approval, because there would
potentially be no break in payments. Therefore, effectively, a buyer
who does not accept assignment of the seller's active provider
agreement could potentially begin receiving Medicare payments
immediately (assuming it meets all the requirements), but not be
responsible for any existing liabilities of the provider agreement.
This would also be an incentive for existing providers or
suppliers with civil money penalties or overpayments to sell their
facilities in order to escape any financial responsibility to the
Medicare program.

75 Fed. Reg. 50,401-02 (Aug. 16, 2010) (emphasis added).
Petitioner argues the CMS contractor, through both telephone conversations and email
communications, told Petitioner that it would be able to bill back to July 1, 2009 for
reimbursement of the Laguna Beach location’s Medicare services. P. Br. at 3, P. Ex. 9, at
2, P. Ex. 2, at 1-2. I will infer, for summary judgment purposes, that these claims are
true. However, Petitioner’s argument amounts to a claim of equitable estoppel. Federal
case law and Board precedent establish: (1) estoppel cannot be the basis to require
payment of funds from the federal fisc; (2) estoppel cannot lie against the government, if
at all, absent a showing of affirmative misconduct, such as fraud; and (3) I am not
authorized to order payment contrary to law based on equitable grounds. See, e.g., Office
of Personnel Mgmt. v. Richmond, 496 U.S. 414 (1990); Heckler v. Cmty. Health Servs. Of
Crawford County, 467 U.S. 51, 63; Wade Pediatrics, DAB No. 2153, at 22 n.9 (2008),
aff'd, 567 F.3d 1202 (10th Cir. 2009). Petitioner has not alleged or come forward with
any evidence of affirmative misconduct by employees at WPS.

IV. Conclusion

It is undisputed that Petitioner did not acquire the provider agreement of its new campus
when it refused to accept the acquisition’s liabilities. Petitioner’s new location met all
federal requirements, pursuant to 42 C.F.R. § 489.13(d)(1)(i)(2009) when the Joint
Commission provided accreditation on March 18, 2010. Thus, CMS had a legitimate
basis for determining Petitioner’s effective date for Medicare enrollment. Therefore, I
grant CMS’s Motion for Summary Judgment and deny Petitioner’s Cross-Motion for
Summary Judgment.

/s/
Joseph Grow
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Rajiv Verma, M.D.,
Petitioner
v.
Centers for Medicare and Medicaid Services.
Docket No. C-11-674
Decision No. CR2457

Date: November 1, 2011

DECISION

I sustain the determination of the Centers for Medicare and Medicaid Services
(CMS) and its contractor, Trailblazer Health Enterprises, LLC (Trailblazer), to
grant an effective Medicare reassignment of benefits date of November 4, 2010 to
Petitioner, Rajiv Verma, M.D.!

I. Background

Petitioner filed a hearing request in which he asserted that he should have been
given an effective Medicare reassignment of benefits date of August 1, 2010. The
case was assigned to me for a hearing and a decision. CMS filed a brief and six
proposed exhibits that it identified as CMS Exhibit (Ex.) 1 - CMS Ex. 6.
Petitioner filed a brief and eight proposed exhibits. These include exhibits that
Petitioner identified as P. Ex. 1 — P. Ex. 6, and two unidentified declarations
consisting of a declaration from Petitioner and a declaration from Charles Leo

'Petitioner’s effective reassignment of benefits date of November 4, 2010 entitles
RGV Radiology, PLLC to file reimbursement claims for services Petitioner
provided beginning on October 6, 2010. 42 C.F.R. § 424.521(a)(1).
Panicker. I identify Petitioner’s declaration as P. Ex. 7 and Mr. Panicker’s
declaration as P. Ex. 8. I receive all of the parties’ exhibits into the record.

I conclude that the material facts in this case are undisputed, for the reasons that I
discuss below. For that reason, there is no need for an in-person hearing, and I
decide this case based on the parties’ written exchanges of briefs and exhibits.

II. Issue, Findings of Fact, and Conclusions of Law
A. Issue

The issue in this case is whether CMS and Trailblazer correctly assigned Petitioner
an effective Medicare participation date of November 4, 2010.

B. Findings of Fact and Conclusions of Law

The undisputed facts are as follows. Petitioner is a physician. On November 4,
2010, Trailblazer received an application filed on Petitioner’s behalf to reassign
Medicare benefits to a practice group, RGV Radiology, PLLC (RGV). CMS Ex.
2. The application is on a form known as CMS Form-855R. Trailblazer processed
that application and granted Petitioner an effective Medicare reassignment of
benefits date of November 4, 2010, thereby entitling RGV to file reimbursement
claims for services he provided beginning as early as October 6, 2010.

Medicare regulations provide that the earliest date that an application may be
accepted by CMS, or one of its contractors, is the later of the dates that a physician
files an acceptable application for enrollment or reassignment of benefits or when
the physician first begins providing services at a new practice location. 42 C.F.R.
§ 424.520(d). Here, the earliest possible effective reassignment of benefits date
that CMS and Trailblazer could have granted to Petitioner was November 4, 2010,
the date when the application for reassignment of benefits was filed on Petitioner’s
behalf. Consequently, Petitioner received the earliest effective reassignment of
benefits date and the earliest possible date when RGV could bill for his services
that is permitted by law.

Petitioner argues that he submitted an earlier application on June 23, 2010 and that
this application should determine the effective date of his participation and the
earliest date that RGV could bill for his services. What Petitioner refers to is an
application known as a CMS Form-855I that RGV submitted on Petitioner’s
behalf on June 23, 2010. That form, however, was not the appropriate form to
allow reassignment of benefits. CMS Form-855] is an initial enrollment form, one
that a provider seeking enrollment in Medicare for the first time files. But, in fact,
Petitioner already was a participating physician as of June 23, 2010, and the Form

8551 that was filed on his behalf was not only superfluous, but it failed to address
the issue that needed to be resolved. What Petitioner needed to file, and what
RGV eventually filed on his behalf, is CMS Form-855R, the form for
reassignment of benefits. Thus, the Form-855] that was filed on Petitioner’s
behalf on June 23 had no operative effect on Petitioner’s participation status or on
RGV’s right to claim benefits for services performed by Petitioner.

When Trailblazer received the June 23 Form-855I, it reviewed the form and
concluded that the signature was not authentic. It returned the form for that
reason. Petitioner now offers his own declaration for the purpose of showing that
the signature on the June 23 form was authentic. P. Ex. 7. I find that evidence to
be irrelevant because the June 23 form has no bearing on the outcome of this case.
Petitioner would not have been entitled to reassign Medicare benefits based on the
June 23 form, even if his signature on the form is authentic.

Petitioner also asserts that he believes that he also filed a Form-855R concurrently
with the June 23 Form 855]. But, Petitioner has provided no documentary
evidence to support this assertion. He has not provided a copy of the Form-855R
that he allegedly filed, nor has he provided proof that he mailed such a form in
June. I find no basis to accept Petitioner’s naked assertion absent any
corroborative proof.

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Hiva Vakil, M.D.,

Petitioner
v.

Centers for Medicare and Medicaid Services.
Docket No. C-11-659
Decision No. CR2456

Date: October 25, 2011

DECISION

I dismiss the hearing request of Petitioner, Hiva Vakil, M.D. Petitioner has no
right to a hearing because the initial determination establishing Petitioner’s
effective date of participation in Medicare became administratively final when
Petitioner failed to timely request reconsideration of that determination.

I. Background

Petitioner is a physician who participates in the Medicare program. He filed a
hearing request to challenge the determination of a Medicare contractor, Noridian
Administrative Services (Noridian), to establish an effective date for reassignment
of benefits of July 12, 2010. The case was assigned to me for a hearing and a
decision.

At my direction, the Centers for Medicare and Medicaid Services (CMS) filed a
brief and proposed exhibits. An entity, Integrated Medical Services (IMS), filed a
response on Petitioner’s behalf consisting of a letter dated October 3, 2011, along
with some attachments. CMS identified its exhibits as CMS Exhibit (Ex.) 1 —
CMS Ex. 8. IMS did not identify the attachments to its letter as exhibits. For
purposes of creating a record, I am identifying the IMS letter along with its
attachments as P. Ex. 1. I receive into the record CMS Ex. 1 — CMS Ex. 8 and P.
Ex. 1.

Neither party provided me with the testimony of any proposed witnesses.
II. Issue, Findings of Fact, and Conclusions of Law
A. Issue

The issue is whether Noridian’s determination to establish an effective date of
Petitioner’s assignment of Medicare benefits of July 12, 2010 is administratively
final.

B. Findings of Fact and Conclusions of Law

The material facts are not in dispute. Noridian, acting on CMS’s behalf, notified
Petitioner on August 10, 2010 of the determination to grant him an effective date
for reassignment of Medicare benefits. CMS Ex. 6. Neither Petitioner nor IMS
expressed dissatisfaction with that determination until April 20, 2011, more than
six months after Noridian sent its notice of its determination to Petitioner. CMS
Ex. 7 at 1. On that date, IMS sent to Noridian an “appeal letter” on Petitioner’s
behalf, requesting that the effective date of reassignment of benefits be changed to
September 1, 2009. CMS Ex. 7 at 2.

Regulations governing appeals of administrative determinations in matters
involving CMS require a party who is dissatisfied with an initial determination to
request reconsideration within 60 days from his or her receipt of that
determination. 42 C.F.R. § 498.22(b). The 60-day deadline may be extended only
on a showing of good cause by the party requesting the extension. 42 C.F.R. §
498.22(d). Absent a showing of good cause for an untimely request, the initial
determination becomes administratively final, and the party who is dissatisfied
with the determination forfeits his or her right to appeal it.

Petitioner’s request for reconsideration was untimely. IMS filed its “appeal” on
Petitioner’s behalf more than six months after Petitioner received notice of
Noridian’s determination, and more than four months after expiration of the
deadline for requesting reconsideration. Neither IMS nor Petitioner offered an
explanation — much less a showing of good cause — for this untimely request.

In its October 3 letter, IMS concedes to “making mistakes (delays) in the
application process ....” P. Ex. 1 at 1. However, IMS contends, on Petitioner’s
behalf, that Noridian made a “couple of critical errors which contributed to the
confusion of when . . . [Petitioner] was actually effective with Medicare to begin
treating patients.” Jd. But, IMS does not identify these allegedly critical errors
nor does it explain why Petitioner failed to file a request for reconsideration
timely.

In its response to CMS’s submission, IMS implies that Noridian or CMS made an
error by originally awarding Petitioner an effective date of Medicare participation
by letter dated October 13, 2009. CMS Ex. 2. IMS seems to assert that this letter
confused IMS and Petitioner as to their obligations and caused a delay in filing an
application for reassignment of benefits. But, whatever confusion may have
resulted from this letter — and I can not comprehend why IMS or Petitioner would
have been confused by it — the October 13, 2009 letter did not have any bearing on
the failure to request reconsideration from the determination establishing July 12,
2010 as the effective date for reassignment of Medicare benefits from Petitioner to
IMS. The August 10, 2010 letter from Noridian to IMS, on Petitioner’s behalf,
informing IMS of the effective date of reassignment of benefits was clear on its
face.'! CMS Ex. 6 at 1. Thus, I find no legitimate basis for IMS or Petitioner to
have been confused and certainly no good cause for the untimely request for
reconsideration.

Noridian’s determination is thus administratively final. An administrative law
judge may dismiss a hearing request in the circumstance where a party has no right
to ahearing. 42 C.F.R. § 498.70(b). Petitioner has no right to a hearing inasmuch
as he has no right to a reconsideration determination. Therefore, I dismiss his
hearing request.

/s/
Steven T. Kessel
Administrative Law Judge

' This letter contains an inaccurate and legally incorrect statement telling IMS that:
“Per regulations 42 CFR 405.874, a provider or supplier may only appeal a denial
or revocation decision.” This statement is wrong in that it has long been
established as a matter of law that a provider or a supplier may appeal a
determination establishing an effective date. 42 C.F.R. § 498.3(b)(15). However,
IMS does not contend that it or Petitioner was misled by this inaccurate statement.


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Robert H. Odell, Jr., M.D.,
Petitioner
v.
Centers for Medicare and Medicaid Services.
Docket No. C-11-639
Decision No. CR2455

Date: October 21, 2011

DECISION

I sustain the determination of the Centers for Medicare and Medicaid Services
(CMS) to establish an effective date for the reassignment of Medicare benefits
from Petitioner Robert H. Odell, Jr., M.D., to Pacific Anesthesia Consultants
(Pacific) of April 25, 2011.

I. Background

Petitioner is a physician. He applied to Palmetto, GBA (Palmetto), a Medicare
contractor, to reassign Medicare benefits to Pacific. This application was
approved by Palmetto on May 20, 2011, and Palmetto established an effective date
of reassignment of April 25, 2011.' Petitioner was dissatisfied with this
determination and requested reconsideration, asking that he be given an effective
date for reassignment of benefits of January 25, 2011. On reconsideration, the

‘In its May 20 notice letter, Palmetto incorrectly told Petitioner that it had
established an effective date of reassignment of March 26, 2011. What Palmetto
evidently was referring to was the earliest date for which Petitioner’s claims for
Medicare reimbursement would be accepted, which is established by regulation to
be 30 days prior to the effective date of a provider’s enrollment.
determination establishing the April 25 effective date was sustained. Petitioner
then requested a hearing, and the case was assigned to me for a hearing and a
decision.

At my direction, CMS filed a brief and proposed exhibits, which CMS designated
as CMS Ex. 1 — CMS Ex. 9. Petitioner responded to CMS’s submission with a
letter that is dated September 15, 2011. I receive into evidence CMS Exhibit (Ex.)
1—CMS Ex. 9, and I also receive Petitioner’s letter into the record.

II. Issue, Findings of Fact, and Conclusions of Law
A. Issue

The issue in this case is whether Palmetto, acting on behalf of CMS, correctly
established an effective date of April 25, 2011 for the reassignment of Medicare
benefits from Petitioner to Pacific.

B. Findings of Fact and Conclusions of Law

The facts of this case are undisputed. Petitioner submitted three applications to
Palmetto to reassign his Medicare benefits. Petitioner’s first application was
approved, effective January 25, 2011. CMS Ex. 2. Petitioner then realized that he
had erroneously designated the wrong assignee in his first application. To correct
that error, he submitted a second application on April 14, 2011. CMS Ex. 3.
However, Petitioner then discovered that he had submitted an incorrect
certification as part of his second application. Petitioner submitted a third
application for reassignment of benefits to correct this error. CMS Ex. 4.
Palmetto received that third application on April 25, 2011, and it then approved it
with the effective date of April 25, 2011.

The effective date of a physician’s participation in Medicare is established by
regulation to be:

the later of the date of filing of a Medicare enrollment application
that was subsequently approved by a Medicare contractor or the date
an enrolled physician . . . first began providing services at a new
practice location.

42 C.F.R. § 424.520(d). The earliest date that Palmetto could approve Petitioner’s
reassignment of Medicare benefits to Pacific was the date when he filed an
acceptable application for that reassignment. That date was April 25, 2011.
Petitioner, therefore, received the earliest effective date permitted by regulation.
Petitioner concedes that he made errors in his first two applications. He argues
that the delay in obtaining an effective participation date is financially injurious to
him, because it has prevented him from obtaining reimbursement for Medicare
items or services that he provided between January 25 and March 26, 2011.
Petitioner’s request is, in effect, a request for equitable relief. Petitioner
essentially requests that I give him an earlier effective date than he is entitled to
under the regulations premised on considerations of fairness.

I do not have that authority. As I have explained, and as a matter of law, the
earliest effective date that Petitioner could have received — April 25, 2011 — is the
date that he did receive.

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division
Jose Maria De Leon, Jr.
(O.L. File No. 6-09-40032-9),
Petitioner
v.

The Inspector General.
Docket No. C-11-813
Decision No. CR2454

Date: October 21, 2011

DECISION

The request for hearing of Petitioner, Jose Maria De Leon, Jr., is dismissed pursuant to
42 C.F.R. § 1005.2(e)(1), because it was not timely filed.

I. Background

The Inspector General (I.G.) notified Petitioner by letter dated June 30, 2011, that he was
being excluded from participation in Medicare, Medicaid, and all federal health care
programs for a minimum period of five years pursuant to section 1128(a)(1) of the Social
Security Act (Act) (42 U.S.C. § 1320a-7(a)(1)). The I.G. cited as the basis for
Petitioner’s exclusion his conviction in the District Court of Cameron County, Texas,
445" Judicial District, of an offense related to the delivery of an item or service under
Medicare or a state health care program.

Petitioner requested a hearing by an undated letter with a postmark of September 21,
2011. On September 28, 2011, the case was assigned to me for hearing and decision, and
an acknowledgement letter was sent to the parties setting this case for a prehearing
conference. On October 5, 2011, the I.G. filed a motion to dismiss the request for
hearing on grounds that the request for hearing was not timely filed. The I.G. also
submitted I.G. exhibits (I.G. Ex.) 1 and 2 with its motion. On October 12, 2011,
Petitioner filed his brief in opposition to the I.G.’s motion to dismiss (P. Br.). Petitioner
has not objected to 1.G. Exs. 1 and 2 and they are admitted.

On October 17, 2011, I convened a prehearing conference by telephone. During the
prehearing conference, the I.G. again asserted that I have no jurisdiction as Petitioner’s
request for hearing was not timely filed and dismissal is required. Petitioner admitted
that he did not file the request for hearing within sixty days after he received the I.G.
notice of exclusion. I explained to Petitioner that I am required by 42 C.F.R.

§ 1005.2(e)(1) to dismiss a request for hearing that is not timely filed and that this
decision would follow.

IL. Discussion
A. Applicable Law

Section 1128(f) of the Act (42 U.S.C. § 1320a-7(f)) establishes Petitioner’s rights to a
hearing by an administrative law judge (ALJ) and judicial review of the final action of
the Secretary of the United States Department of Health and Human Services (Secretary).
The Secretary has provided by regulation that an excluded individual or entity must
submit a request for hearing in writing to the Departmental Appeals Board (the Board),
signed by the petitioner or counsel, within sixty days after receipt of the notice of
exclusion. The regulation also provides that receipt of the notice of exclusion is
presumed to be five days after the date on the notice, unless there is a reasonable showing
to the contrary. 42 C.F.R. § 1005.2(c). I am required to dismiss a request for hearing that
is not filed timely. 42 C.F.R. § 1005.2(e)(1).

B. Issue

Whether Petitioner’s request for hearing must be dismissed because it was not
filed timely?

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

My conclusions of law are set forth in bold followed by the pertinent findings of fact and
analysis.
1. Petitioner’s request for hearing was not filed timely.

2. Petitioner’s request for hearing must be dismissed.

Petitioner does not deny that the LG. notice of exclusion was dated June 30, 2011.

Petitioner does not deny that he received t

e notice letter and its attachment that advised

him of his right to request a hearing before an administrative law judge and that he must

request a hearing, if desired, within sixty

lays of receipt of the notice. Petitioner does not

deny that he did not mail his request for hearing until September 21, 2011, as indicated

by the postmark on the envelope in which
Board. Petitioner states in his request for

the request for hearing was received at the
earing that he received the I.G.’s notice “a

couple of weeks” after the date of the notice. Although Petitioner does not disclose the

date on which the notice of exclusion was

response to the I.G. motion to dismiss that

actually received, Petitioner admitted in his
he failed to file the request for hearing within

sixty days of his receipt of the notice of exclusion. Petitioner confirmed during the

prehearing conference that he admitted in

is response to the motion to dismiss that he

failed to file the request for hearing within sixty days after he received the LG. notice of

exclusion.

The regulation requires that a request for hearing be filed within sixty days after receipt
of the notice of exclusion. 42 C.F.R. § 1005.2(c). The regulation requires that I dismiss
a request for hearing that is not filed in a timely manner. 42 C.F.R. § 1005.2(e)(1).
Because Petitioner’s request for hearing was not filed within sixty days of his receipt of
the notice of exclusion, the request was not filed in a timely manner, and it must be

dismissed.

II. Conclusion

For the foregoing reasons, Petitioner’s request for hearing is dismissed.

/s/

Keith W. Sickendick
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Matthew D. McLaren, M.D., PLLC,
(NPI No. 1598760332)

Petitioner
v.
Centers for Medicare and Medicaid Services
Docket No. C-11-434
Decision No. CR2453
Date: October 18, 2011
DECISION

Petitioner, Matthew D. McLaren, M.D., appeals the determination of the Noridian
Administrative Services LLC (Noridian), a Medicare contractor, that Petitioner cannot
retrospectively bill for services rendered to Medicare-eligible beneficiaries earlier than
June 27, 2010. I grant the Centers for Medicare and Medicaid Services’ (CMS’s) motion
for summary judgment and uphold Noridian’s reconsideration determination that
Petitioner’s effective enrollment date is July 26, 2010 and that his retrospective billing
period started on June 27, 2010.

I. Background

Petitioner is a physician practicing in Great Falls, MT. By letter dated November 3,
2010, Noridian informed Petitioner that it had approved his Medicare enrollment
application and had assigned him an effective billing date of June 27, 2010. CMS Ex. 1,
at 1. Petitioner then requested a reconsideration review seeking to change the
retrospective billing date from June 27, 2010 to March 1, 2010. CMS Exs. 2, 3,5. Ina
determination dated March 22, 2011, Noridian informed Petitioner that the
reconsideration review was unfavorable and that his enrollment date and retrospective
billing date were correctly calculated. CMS Ex. 6.
On April 29, 2011, Petitioner requested a hearing to challenge his effective billing date. I
issued orders on May 9, 2011 and August 3, 2011 that allowed the parties to file their
exchanges and arguments.

CMS submitted a motion for summary judgment and a pre-hearing brief in support of its
motion, along with nine exhibits identified as CMS Exs. 1-9. Petitioner filed his
response, along with a copy of his initial April 29, 2011 request for hearing.

II. Issue

This issue in this case is whether Petitioner is entitled to bill for services he provided to
Medicare-eligible beneficiaries earlier than June 27, 2010.

Ill. Analysis
My findings of fact and conclusions of law are set forth in italics and bold below.
A, Summary judgment is appropriate in this case as a matter of law.

CMS argues that it is entitled to summary judgment because there is no genuine issue as
to any material fact. CMS Brief at 5-6. The Departmental Appeals Board (Board) has
explained that —

[s]ummary 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. . . . 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. . .
. To defeat an adequately supported summary judgment motion, 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. . . . In
determining whether there are genuine issues of material fact for trial, the
reviewer must view the evidence in the light most favorable to the non-
moving party, drawing all reasonable inferences in that party’s favor.

Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (citations omitted).

The Board has further explained that the role of an Administrative Law Judge (ALJ) in
deciding a summary judgment motion differs from its role in resolving a case after a
hearing. The ALJ should not assess credibility or evaluate the weight of conflicting
evidence. Holy Cross Vill. at Notre Dame, Inc., DAB No. 2291 at 5 (2009).
Having accepted all of Petitioner’s factual assertions as true and having drawn all
reasonable inferences in his favor, | find that Petitioner has not disputed the key material
fact in this case — the date on which Noridian received Petitioner’s application that it was
able to process to approval. Accordingly, for the reasons set forth below, I agree with
CMS that summary judgment is appropriate in this case.

B. Noridian received an approvable Medicare enrollment application from
Petitioner on July 26, 2010, which necessarily determined Petitioner’s effective
date.

Petitioner seeks to file claims and receive payment for services he provided to Medicare-
eligible beneficiaries beginning March 1, 2010, instead of June 27, 2010. Noridian has
determined June 27, 2010 to be the earliest date Petitioner can receive payment for
services he furnished.

To receive payment for services a supplier furnishes to Medicare-eligible beneficiaries, a
supplier must first be enrolled in the Medicare program and also be issued a billing
number.” 42 C.F.R. § 424.505. The determination of the effective date of Medicare
enrollment is governed by 42 C.F.R. § 424.520, which provides in part, that the effective
date for enrollment for physicians is “the ater of the date of filing of a Medicare
enrollment application that was subsequently approved by a Medicare contractor or the
date an enrolled physician . . . first began furnishing services at a new practice location.”
42 C.F.R. § 424.520(d) (emphasis added). Therefore, the effective enrollment date here
depends on the date the contractor first received Petitioner’s approvable application.
This is consistent with the preamble to the final rule and the plain language of the
regulation. 73 Fed. Reg. 69,769 (Nov. 19, 2008); 42 C.F.R. § 424.520(d).

In this case, CMS has come forward with evidence of a postmarked envelope showing
that Petitioner’s CMS-855I Medicare Enrollment Application was mailed to Noridian on
July 23, 2010. CMS Ex. 7. CMS presents evidence that Noridian received Petitioner’s
application three days later on July 26, 2010. CMS Ex. 8, at 1. Petitioner does not claim
to have submitted his enrollment application prior to July 23, 2010, nor does he challenge
the July 26, 2010 date Noridian received his application.

I find that Petitioner has not shown as a matter of fact that he filed an application on an
earlier date. Therefore, the undisputed facts establish that the earliest date when Noridian

“Medicare defines “supplier” to mean “‘a physician or other practitioner, a facility, or
other entity (other than a provider of services) that furnishes items or services” under the
Medicare statute. Social Security Act (Act) § 1861(d), 42 U.S.C. § 1395x(d). See also
42 CFR. § 400.202.
could have approved Petitioner’s enrollment application was July 26, 2010. 42 C.F.R. §
424.520(d).

C. Noridian properly determined Petitioner’s Medicare retrospective billing
privileges.

A physician may retrospectively bill for up to 30 days prior to the date of filing of the
approved Medicare enrollment application when a physician has met all program
requirements and if circumstances precluded enrollment in advance of providing services
to Medicare beneficiaries. 42 C.F.R. § 424.521(a)(1). Noridian has afforded Petitioner
this 30-day retrospective billing privilege.

Although the regulation permits physicians, in rare circumstances, to bill retrospectively
for up to 90 days prior to the effective date of enrollment, this exception can only be
applied if the physician establish that there was a Presidentially-declared disaster that
precluded the physician from filing his or her application sooner. 42 C.F.R. § 424.521(a).
Petitioner does not claim this exception. Rather, Petitioner presents equitable
considerations in defense of the date his application was submitted. With his request for
hearing, Petitioner presents a November 24, 2010 letter from his billing service, Medical
Data Management, LLP. This letter states that Petitioner’s enrollment application was
intended to be submitted earlier once credentialing had been completed, but there was an
unexpected delay due to both a personnel health issue with one of its key employees and
a software upgrade. Petitioner states, in a letter dated November 9, 2010, that his
enrollment application was not mailed until July 2010 due to these circumstances.

Petitioner’s assertions provide no legal grounds for me to grant him an earlier effective
date. Petitioner received an effective date based upon the date that Noridian received his
application. Although I may be sympathetic to Petitioner’s position, I am unable to grant
the relief Petitioner seeks. The regulations are clear, and Petitioner’s equitable
considerations cannot be a basis to grant Petitioner an earlier date for billing privileges.
US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the Board is authorized
to provided equitable relief by reimbursing or enrolling a supplier who does not meet
statutory or regulatory requirements.”); Oklahoma Heart Hosp., DAB No. 2183 at 16
(2008). Here, there simply are no material issues in dispute, and CMS prevails as a
matter of law.

The undisputed facts establish that Petitioner submitted an application on July 23, 2010,
that was received by the contractor on July 26, 2010, and subsequently approved.
Noridian’s determination of Petitioner’s effective date of enrollment was entirely
consistent with regulatory requirements. I find that Petitioner received the earliest
possible effective billing date allowable under the applicable regulations.

IV. Conclusion

I find that CMS is entitled to summary judgment. Petitioner’s effective date of
enrollment is July 26, 2010, with a retrospective billing period starting 30 days prior, on
June 27, 2010.

/s/
Joseph Grow
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

In re CMS LCD COMPLAINT:
Karen Mayhak,
Related to LCD L26003
(A46082)

Docket No. C-11-723
Decision No. CR2452

Date: October 14, 2011

DECISION DISMISSING CASE

By Order of September 12, 2011, the aggrieved party was notified that the complaint in
this matter did not appear to be acceptable as that term is defined in the regulations, and
was directed to submit an amended complaint not later than October 3, 2011. The
aggrieved party has failed to do so, and thus this complaint remains unacceptable within
the terms of 42 C.F.R. ยง 426.410(b). Accordingly, it is dismissed pursuant to the
authority set out in 42 C.F.R. ยง 426.410(c)(2).

IT IS SO ORDERED.

/s/

Richard J. Smith
Administrative Law Judge