Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Luis Perez-Perez,
Petitioner
Vv.
The Inspector General.
Docket No. C-10-220
Decision No. CR2144

Date: June 10, 2010

DECISION

Petitioner, Luis Perez-Perez, submitted several documents to the Civil Remedies Division
(CRD) of the Departmental Appeals Board (DAB) seeking review of the determination of
the Inspector General (I.G.) to exclude him for five (5) years from participation in
Medicare, Medicaid, and all federal health care programs under section 1128(a)(3) of the
Social Security Act (Act). The I.G. moved to dismiss. For the reasons discussed below,
the Motion to Dismiss is granted.

I. Background

In a letter dated September 30, 2009, the LG. notified Petitioner that Petitioner was
excluded from participation in Medicare, Medicaid, and other federally-funded health
care programs for a period of 5 years. The exclusion was based on Petitioner’s felony
conviction of conspiracy to commit honest services mail fraud in connection with
medical licensing examinations of the Board of Medical Examiners of Puerto Rico. With
the notice letter, the I.G. advised Petitioner that he could appeal if he filed a written
request for a hearing before an administrative law judge (ALJ) within 60 days of receipt
of the notice letter. I.G. Ex. | at 3.
On December 9, 2009, sixty-nine (69) days after the date of the notice letter, Petitioner
mailed, via Express Mail, documents relating to the I.G. exclusion to CRD. The
documents included the following: (1) a letter from the I.G. dated September 30, 2009,
excluding Petitioner from participation in the Medicare, Medicaid, and all Federal health
care programs for five (5) years; (2) a letter from the U.S. Office of Personnel
Management (OPM) dated November 2, 2009, proposing to debar Petitioner from
participating in the Federal Employees Health Benefits Program (FEHBP); and (3) an
undated letter from Assistant United States Attorney (AUSA) Jose A. Ruiz-Santiago,
describing Petitioner’s cooperation and assistance to the United States Attorney’s Office.
In his letter, AUSA Ruiz-Santiago also recommended that Dr. Perez not be excluded
from participation in the Medicare program. The matter was docketed and assigned to
me on January 5, 2010 for hearing, related proceedings, and a decision. A letter was
issued to the parties on January 7, 2010, acknowledging receipt of the information and
notifying the parties that a prehearing conference had been set for January 27, 2010, at
10:30 a.m. Eastern Time.

The prehearing conference was conducted as scheduled. Present during the telephone
prehearing conference was Ernesto Hernandez, Legal Counsel for Dr. Perez-Perez,
Tamara T. Forys, representing the I.G., and with me was Terrah A. Dews, CRD’s Deputy
Division Director. During the conference, I informed the parties that review of the case
raised two threshold jurisdictional issues. First, the documents in my file did not include
Petitioner’s request for hearing in the case. As noted above, Petitioner provided a letter
rom AUSA Ruiz-Santiago who, according to Petitioner’s attorney, was not acting as
legal counsel for Dr. Perez at the time the undated letter was prepared. Petitioner’s
Counsel indicated that Dr. Perez had not submitted any additional information or a letter
requesting a hearing with the information he provided to the DAB. Thus, this case
presents a legal question as to whether Petitioner filed a valid request for hearing. The
second issue relates to whether the information that Petitioner submitted, if it is
determined to be a valid hearing request, was filed within the time frame that the
applicable regulations dictate.

I informed the parties that the two threshold jurisdictional issues must be addressed first,
so that I may determine if I have jurisdiction to address the merits of the case. The LG.
filed a Motion to Dismiss on February 18, 2010, accompanied by four exhibits (I.G. Exs.
1-4). After receiving leave of court for an extension of time to file a response, Petitioner
filed an Opposition to the I.G.’s Motion to Dismiss on March 11, 2010, accompanied by
three exhibits (Pet. Exs. 1-3). On March 16, 2010, the I.G. sought leave of court to file a
Reply to Petitioner’s Opposition, and the Motion was granted. On March 31, 2010, the
1.G. filed a Reply to Petitioner’s Brief in Opposition to the I.G.’s Motion to Dismiss. In
the absence of any objection, I admit into the record I.G. Exs. 1-4 and Pet. Exs. 1-3. On
April 14, 2010, I issued an Order Closing the Record in this matter.
IL. Issues
The two threshold jurisdictional issues are as follows:

1) Did Petitioner file a valid request for hearing pursuant to 42 C.F.R. §1005.2(c);
and

2) Did Petitioner file a timely request for hearing pursuant to 42 C.F.R.
§1005.2(e)(1)?

II. Discussion

A. Petitioner did not file a valid request for hearing pursuant to
42 C.F.R. §1005.2(c).

Section 1128(a)(3) of the Act requires that the Secretary exclude an individual who has
been convicted under federal or state law of a criminal offense related to fraud, theft,
embezzlement, breach of fiduciary responsibility, or other financial misconduct in
connection with the delivery of a health care item or service. 42 C.F.R. § 1001.101(c).
For an individual who has been excluded pursuant to the statute to appeal the exclusion,
the individual must file a signed written request for hearing with the DAB. 42 C.F.R.
§1005.2(c).

As previously noted, Petitioner submitted only the following to the DAB: (1) a letter
rom the I.G. dated September 30, 2009, excluding Petitioner from participation in the
Medicare, Medicaid, and all Federal health care programs for five (5) years; (2) a letter
rom OPM dated November 2, 2009, proposing to debar Petitioner from participating in
the FEHBP; and (3) an undated letter from the AUSA, describing Petitioner’s
cooperation and assistance to the United States Attorney’s Office. The LG. persuasively
argues and Petitioner does not refute that Petitioner’s submission did not include a signed
written request for hearing and therefore is not a valid hearing request pursuant to the
regulations.

Petitioner argues that the letter he received from CRD acknowledging receipt of his
submission misled him into believing that due process was being acknowledged by the
Department of Health and Human Services. Pet. Opp. at 4. Petitioner contends that the
acknowledgment letter provides him with good cause for missing the deadline to request
review under 20 C.F.R. §404.911. However, Petitioner’s reliance on this regulation is
misplaced, as that section only applies to Social Security Administration cases involving
federal old-age, survivors, and disability insurance. Thus, Petitioner did not file a valid
request for hearing pursuant to 42 C.F.R. §1005.2(c).
B. Petitioner did not file a timely request for hearing pursuant to
42 CFR. §1005.2(e)(1).

Even if I were to accept the documents that Petitioner submitted as a valid hearing
request, Petitioner’s case must still be dismissed, because the documents were not
submitted timely. The regulations governing these proceedings grant me virtually no
discretion. An aggrieved party must request a hearing within sixty days after receiving
notice of the exclusion. 42 C.F.R. §1001.2007(b). The date of receipt is presumed to be
five days after the date of the notice, unless there is a reasonable showing to the contrary.
42 C.F.R. §1005.2(c). The regulations include no good-cause exceptions for untimely
filing, providing that the ALJ will dismiss a hearing request that is not filed in a timely
manner. 42 C.F.R. §1005.2(e)(1); John Maiorano, R. Ph., v. Thompson, Civil Action No.
04-2279, 2008 WL 304899, at *3-4 (D. N.J. 2008).

Petitioner is presumed to have received the notice letter by October 4, 2009 and had until
December 4, 2009 to file a valid request for hearing. Petitioner’s only defense would be
that he did not receive the notice letter or that he received it late. Petitioner makes no
such contention and is thus presumed to have received the notice by October 4, 2009.
Because the documents Petitioner submitted were not filed within 60 days of receipt of
the notice letter, the hearing request is not timely and must be dismissed pursuant to 42
C.F.R. §1005.2(e)(1).

In his Opposition, Petitioner does not respond to the threshold issues of whether the
request for hearing is valid and, if so, whether it is timely. Rather, Petitioner attempts to
collaterally attack his conviction, which the regulations do not permit.

When the exclusion is based on the existence of a criminal conviction . .. where
the facts were adjudicated and a final decision was made, the basis for the

underlying conviction . . . is not reviewable and the individual or entity may not
collaterally attack it, either on substantive or procedural grounds, in this appeal.

42 C.F.R. § 1001.2007(d); Joann Fletcher Cash, DAB No. 1725 (2000).
Petitioner also argues that he is being denied an opportunity to be heard. None of the

arguments that Petitioner advances directly address the threshold jurisdictional issues that
I must consider and decide in this case.
IV. Conclusion

Based on my review of all of the evidence submitted in this case, I find that Petitioner did
not file a valid request for hearing, and, even if it is assumed he did file a valid request,
that request was not timely filed. Therefore, the 1.G.’s Motion to Dismiss is granted, and
Petitioner’s case must be dismissed. Because Petitioner did not file a timely request for
hearing, I do not have jurisdiction to address the merits of the case.

/s/
Alfonso J. Montafio
Administrative Law Judge


Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Dinesh Dayabhai Shah,

Petitioner

Vv.

The Inspector General.

Doc

ket No. C-10-380

Decision No. CR2143

Date: June 4, 2010

I sustain the determination to exclude
participating in Medicare and other fe
of at least 20 years.

I. Background

Petitioner is a pharmacist. On Noveml

DECISION

Petitioner, Dinesh Dayabhai Shah, from
erally-financed health care programs for a period

ber 30, 2009, the Inspector General (I.G.) notified

Petitioner that he was being excluded from participating in Medicare and other federally-
financed health care programs for a period of at least 20 years. The asserted basis for the

exclusion was that Petitioner had been

convicted of a criminal offense related to the

delivery of an item or service under New York State’s Medicaid program. The I.G. cited

several allegedly aggravating factors tl
year exclusion.

Petitioner requested a hearing, and the

at, according to the I.G., justified imposing a 20-

case was assigned to me for a hearing and a

decision. I held a pre-hearing conference at which I assigned the parties deadlines for
exchanging briefs and proposed exhibits. The I.G. submitted a brief and five proposed

exhibits, which I identify as I.G. Ex. 1

—I1.G. Ex. 5 and which I receive into evidence.
Petitioner submitted a brief but did not submit proposed exhibits. The I.G. also submitted
a reply brief.

Neither party requested that I convene a hearing to receive testimony.
IL. Issues, findings of fact, and conclusions of law
A. Issues

The issues in this case are whether:

1. Petitioner was convicted of a criminal offense as is described at section
1128(a)(1) of the Social Security Act (Act); and

2. An exclusion of Petitioner for a period of at least 20 years is reasonable.
B. Findings of fact and conclusions of law
I make the following findings of fact and conclusions of law (Findings):

1. Petitioner was convicted of a criminal offense as is described at
section 1128(a)(1) of the Act.

Section 1128(a)(1) mandates the exclusion of any individual who is convicted of a
criminal offense related to the delivery of an item or service under Medicare or a State
ealth care (State Medicaid) program. The undisputed facts establish that Petitioner was
convicted of such an offense.

Petitioner pled guilty in March 2008 to both counts of a criminal indictment that had been
issued against him in United States District Court for the Southern District of New York.
1.G. Ex. 3 at 1-12; 1.G. Ex. 4 at 1. He pled guilty both to conspiracy to commit health
care fraud and to perpetrating fraud against the New York State Medicaid program.
Petitioner was charged, along with several co-conspirators, with a scheme whereby he
and his co-conspirators purchased prescriptions from Medicaid beneficiaries for a

raction of the actual cost of filling those prescriptions. Petitioner and his co-conspirators
then submitted claims to Medicaid for reimbursement for those prescriptions as if they
ad filled them, whereas, in fact, the prescriptions were not filled. As a consequence,
Petitioner and his co-conspirators defrauded Medicaid into reimbursing them for items
that were never sold. I.G. Ex. 3.

The crime that Petitioner committed clearly is related to Medicaid items or services.
Axiomatically, fraud committed against a State Medicaid program to obtain
reimbursement for items or services that were never provided is related to Medicaid items
or services.

2. Exclusion for at least 20 years is reasonable.

Exclusion imposed pursuant to section 1128(a)(1) of the Act must be for a minimum of
five years. Act § 1128(c)(3)(B). The I.G. has discretion to exclude for more than five
years in a case where the evidence establishes the presence of aggravating factors that are
not offset by mitigating factors. 42 C.F.R. § 1001.102(b), (c).

The ultimate issue that must be decided in any case in which an exclusion of more than
five years is imposed is the trustworthiness of the excluded provider to participate in
federally-funded programs. Exclusion is a remedy and not a punishment. It is intended
to protect federal programs and the beneficiaries and recipients of program funds from
untrustworthy individuals. In any case where I decide the reasonableness of an exclusion
I must ask: how long is reasonably necessary to protect the programs and beneficiaries
and recipients from an untrustworthy individual?

The aggravating and mitigating factors that are listed in the regulation function as rules of
evidence for deciding an exclusion’s length. In a de novo hearing, I may consider as
relevant to the ultimate issue of trustworthiness any evidence that fits within the
definition of an aggravating or mitigating factor. Evidence that does not meet the
definition of one of the factors is irrelevant, and I may not consider it.

The regulatory aggravating and mitigating factors, as is the case with rules of evidence,
do not prescribe a formula for deciding an outcome. They only tell me what is relevant.
In any case, where there is evidence that falls within an aggravating or mitigating factor, I
still must decide independently from the I.G. what that evidence says about the
trustworthiness of the excluded individual.

In this case, the I.G. produced evidence that meets the definitions set forth by four
distinct aggravating factors.

e The acts that resulted in Petitioner’s conviction caused a financial loss of $5,000
or more to a government program. 42 C.F.R. § 1001.102(b)(1). Petitioner pled
guilty to defrauding the New York Medicaid program of approximately $2.1
million by fraudulently obtaining reimbursements for prescription drugs, which
were not in fact dispensed to beneficiaries. 1.G. Ex. 3 at 2. He was sentenced to
pay restitution in the amount of $1.1 million for his crimes. I.G. Ex. 4 at 5.
e The acts that resulted in Petitioner’s conviction were committed over a period of
one year or more. 42 C.F.R. § 1001.102(b)(2). Petitioner committed his crimes
over a period that extended from June 2002 into February 2007, a period of about
four and one-half years. I.G. Ex. 3 at 2.

e The sentence imposed on Petitioner included incarceration. 42 C.F.R.
§ 1001.102(b)(5). Petitioner was sentenced to serve a term of 37 months’
imprisonment. I.G. Ex. 4 at 2.

e Petitioner has been subject to other adverse action by a State agency or board,
based on the same set of circumstances as was the basis for his exclusion. 42
C.F.R. § 1001.102(b)(9). On March 17, 2009, the Office of Professional
Discipline of the New York State Education Department revoked Petitioner’s
license to practice pharmacy in New York, based on the identical conviction and
crimes that are the basis for the exclusion that is at issue in this case. I.G. Ex. 5 at
2,8.

Petitioner did not assert that he had evidence that conformed to any of the mitigating
factors that are set forth at 42 C.F.R. § 1001.102(c). He offered evidence concerning his
personal history, the absence of any prior criminal convictions involving him, his family,
and his professional experience. He asserted that he acknowledged responsibility for his
crimes. I rule all of this evidence to be irrelevant to the case inasmuch as it does not
relate to either an aggravating or a mitigating factor.

The evidence that the I.G. offers relating to aggravating factors shows Petitioner to be a
manifestly untrustworthy individual. It establishes that he participated in a scheme that
endured for more than four years in which he, in concert with others, stole more than a
million dollars from the New York Medicaid program. Petitioner’s scheme — to purchase
prescriptions from beneficiaries for a fraction of the cost of filling them and then to claim
reimbursement for the unfilled prescriptions as if they had been filled — was not a
particularly complicated or subtle scheme. But, it was a scheme that was profoundly
damaging to the Medicaid program. At a time when program funds are stretched to their
limits, Petitioner and his cohort engaged in wholesale and concerted fraud. Moreover, it
was a scheme that Petitioner and his cohort pursued with great intensity and diligence. It
involved a huge number of individual fraudulent claims and a correspondingly large
number of corrupt supporting transactions between Petitioner, his cohort, and Medicaid
recipients.

The seriousness of Petitioner’s crimes may be measured also by his lengthy term of
incarceration, more than three years in prison, as well as the very substantial restitution of
more than $ 1 million that he was ordered to pay. The fact that the State of New York
found it necessary to revoke Petitioner’s license to practice pharmacy in that State, based
on the crimes that Petitioner had committed, simply provides more evidence of the
gravity of Petitioner’s crimes and of his untrustworthiness to provide care.

Exclusion for 20 years obviously is a very lengthy exclusion. But, it is reasonable here
given the gravity of Petitioner’s crimes and what the aggravating evidence says about
Petitioner’s lack of trustworthiness.

Petitioner argues that he is being treated disparately. He asserts that in other cases that
are similar to his, the I.G. determined not to impose exclusions that are as lengthy as the
20 years that Petitioner received. I make no findings based on what happened in other
cases. The merits of any case must stand or fall based on the evidence of that case, and I
do not decide the reasonableness of exclusions using a comparative standard.

/s/
Steven T. Kessel
Administrative Law Judge


Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD

Civil Remedies Division

Michael Majette, D.C. (Integrated Health Solutions)
(NPI: 1922244482),

Petitioner
Vv.
Centers for Medicare and Medicaid Services.
Docket No. C-10-365
Decision No. CR2142

Date: June 4, 2010

DECISION

I deny the motion of the Centers for Medicare and Medicaid Services (CMS) to dismiss
the hearing request of Petitioner, Michael Majette, D.C., regarding his practice,
Integrated Health Solutions. I grant CMS’s motion for summary disposition.
Accordingly, the effective date of Petitioner’s enrollment remains May 22, 2009, with
billing privileges retroactive for 30 days to April 22, 2009, as CMS granted consistent
with applicable regulations.

I. Background

The following facts are not disputed. By letter dated December 12, 2008, Petitioner
submitted to CMS contractor, First Coast Service Options (First Coast), a form, CMS-
855R (Medicare Enrollment Application - Reassignment of Medicare Benefits),
requesting the reassignment of his Medicare benefits to Integrated Health Solutions d/b/a
Advanced Spinal Care, a practice that Petitioner was opening in February 2009. CMS
Exhibit (Ex.) 1; P. Request for Hearing (RH). In his letter, Petitioner requested that CMS
reassign his benefits with an effective date of February 1, 2009. CMS Ex. 1. First Coast
acknowledged receipt of the application in a letter to Petitioner dated December 17, 2008.
CMS Ex. 2. First Coast returned the application by letter dated January 7, 2009 stating
that it was unable to process the application, because Petitioner had not submitted a form
2

CMS 855B (Application for Health Care Suppliers that will Bill Medicare Carriers) for
Integrated Health Solutions, and that Petitioner could reapply. CMS Ex. 2.

Petitioner submitted, by letter dated May 19, 2009, a second application, consisting of
forms CMS-855R and CMS-855I (Medicare Enrollment Application - Physicians and
Non-Physician Practitioners). First Coast received the application on May 22, 2009 and
acknowledged receipt in a letter dated May 26, 2009. CMS Exs. 3, 4, 9. In two letters
dated June 18, 2009, First Coast: (1) informed Petitioner that it could not process his
application, unless he submitted within 30 days a “Completed Form 588, Authorization
Agreement for Electronic Funds Transfer;” and (2) returned the form CMS-855R,
because it “is not needed for the transaction in question.”' CMS Ex. 4. Petitioner
submitted a form 588 dated June 19, 2009, and First Coast, by letter dated July 30, 2009,
approved Petitioner’s practice Integrated Health Solutions and assigned it a Provider
Transaction Access Number (PTAN) effective May 24, 2009, on the ground that this was
“Tt]he date requested on the application.” CMS Exs. 5, 6.

Petitioner requested reconsideration of the effective date, stating that he had been treating
Medicare patients since February 16, 2009 and had been “in network” prior to starting his
practice. CMS Ex. 7. Ina decision dated November 3, 2009, First Coast granted
Petitioner an “eligibility date” of April 22, 2009, as this was “30 days retroactive to the
receipt date of the application” on May 22, 2009. CMS Ex. 9, at 3. The reconsideration
decision informed Petitioner that he could appeal the determination to an Administrative
Law Judge (ALJ) within 60 days, and Petitioner submitted the hearing request by letter
dated January 6, 2010. CMS Ex. 9.

This case was assigned for hearing and decision to ALJ Carolyn Cozad Hughes, who
issued an initial pre-hearing order that included instructions on briefing and the
submission of exhibits on February 3, 2010. This case was transferred to me for hearing
and decision on March 23, 2010, pursuant to 42 C.F.R. § 498.44, which permits a Board
Member of the Departmental Appeals Board (Board) to be designated to hear appeals
taken under Part 498.

In a submission dated March 5, 2010, CMS filed a motion to dismiss Petitioner’s request

or hearing and/or for summary disposition, along with CMS exhibits | through 16. CMS
argues that the effective date of a non-physician practitioner’s Medicare enrollment is not
an initial determination subject to an appeal and, alternatively, that it properly determined
Petitioner’s effective date. Petitioner declined to submit a response to CMS’s motion and

' CMS states that “in most instances solely-owned practitioner organizations are required
to file only an 8551, not an 855B or 855R.” CMS Motion to Dismiss for Summary
Disposition (Motion) at 3 n.4 (citing Medicare Program Integrity Manual, Ch. 10, §
4.4.3). CMS reports, presumably by way of explanation for the contractor's initial
request for an 855B, that at the time Petitioner originally filed the CMS 855R in
December 2008, he “had not indicated to CMS that Integrated Health Solutions was
Petitioner’s own practice.” CMS Motion at 21 n.11.

3

indicated that all of Petitioner’s argument had been presented with the requests for
reconsideration and for a hearing. Petitioner made no objections to CMS’s exhibits,
which I admit as evidence.

With his request for a hearing, Petitioner enclosed seven pages of “Medicare Remittance
Notices” from First Coast reflecting the denial of claims. The regulations governing this
appeal bar Petitioner from offering “new documentary evidence .. . for the first time at
the ALJ level,” absent a showing of good cause. 42 C.F.R. § 498.56(e). The
reconsideration decision does not list these notices among the documentation that
Petitioner provided with his request for reconsideration, but the record does not indicate
whether they were part of the case file that the hearing officer reviewed on
reconsideration since they are documents that the contractor issued. In resolving this case
in favor of CMS by summary judgment, I view all evidence in the light most favorable to
the non-movant and draw all reasonable inferences in Petitioner’s favor. I therefore infer
that the documents were before the hearing officer and consider them as part of the
record for decision for purposes of resolving this dispositive motion.”

IL. Issues, Findings of Fact, Conclusions of Law
A. Issues
The issues in this case are:

1. Whether Petitioner has a right to a hearing on the effective date of his Medicare
participation, and

2. Ifso, what are the legally correct dates on which Petitioners’ approval is
effective and for which Petitioners may bill Medicare for services provided.

B. Findings of fact and conclusions of law

I. Ihave authority to hear Petitioner’s challenge to the determination of
the effective date of his approved Medicare enrollment.

a. Applicable standard

Pursuant to 42 C.F.R. § 498.70(b), I may dismiss a hearing request in the circumstance
where a party requesting a hearing “does not otherwise have a right to a hearing.”

> If this case were to proceed to hearing, I would have to determine as questions of fact
whether the documents were “new” in the sense that the regulation intends and, if so,
whether Petitioner had good cause for producing them only at this level, before I could
admit as documentary evidence. As I discuss in the section of this decision addressing
CMS’s motion for summary disposition, however, the notices are not material to the
appeal, so the issue has little practical significance in this case.
b. Analysis

CMS argues in its motion to dismiss that Petitioner has no right to a hearing to challenge
the effective date of his enrollment. CMS argues that the Medicare Act and applicable
regulations in Part 424 “limit a provider’s or supplier’s appeal rights to denials of
enrollment applications or revocations of billing privileges” and that “there is no
authority granted to providers or suppliers like the Petitioner to appeal an approval of an
enrollment application so as to alter the effective date of its billing privileges.” CMS
Motion at 13-14 (citing U.S.C. § 1395cc(h)(1)(A)); 42 C.F.R. §§ 424.545, 405.874,
498.5(1), 498.22. CMS argues that First Coast permitted Petitioner to challenge the
effective date determination pursuant to a prior CMS policy that CMS has since retracted,
because CMS determined that the policy was erroneous.

I disagree with CMS’s arguments for the following reasons.

Part 424, subpart P, unquestionably does grant appeal rights from denials and
revocations, but it does so by reference to the provisions of subpart A of Part 498. 42
C.F.R. § 424.545(a). Subpart A of Part 498 governs appeals procedures for
determinations affecting participation in Medicare (and certain Medicaid determinations)
and includes lists of CMS initial determinations that are subject to appeal and
administrative actions, which are not subject to appeal under Part 498. One of the initial
determinations listed as subject to appeal is:

The effective date of a Medicare provider agreement or supplier approval.

42 C.F.R. § 498.3(b)(15). None of the administrative actions identified as not subject to
appeal under Part 498 refers to the determination of an effective date for a provider or
supplier to participate in Medicare. In adopting section 498.3(b)(15), CMS recognized
that approving participation at a date later than that sought amounts to a denial of
participation during the intervening time and generally involves the same kind of
compliance issues that arise from initial denials. 62 Fed. Reg. 43,931, 43,933 (Aug. 18,
1997); 57 Fed. Reg. 46,362, 46,363 (Oct. 8, 1992). Since the subpart of Part 498
containing the grant of appeal rights for effective date determinations of supplier
approvals is expressly adopted by section 424.545(a), it follows that Part 424, the
regulation on which CMS relies, rather than precluding effective date challenges, adopts
the provision granting them.

It is well-established, and not questioned by either party here, that the Board and its ALJs
are bound by statute and regulations. Where a regulation speaks clearly on its face and
applies to the question before me, I am bound to follow it. The wording of section
498.3(b)(15) appears straightforward in providing that the “effective date of a Medicare
provider agreement or supplier approval” is an appealable initial determination and
includes no qualifying or limiting language.
5

CMS argues nonetheless that the plain language of section 498.3(b)(15) is inapplicable
here. CMS argues that this provision is meant to apply only to those suppliers or
providers subject to survey and certification (or accreditation by a CMS-approved
accrediting organization) as a basis for determining their participation in Medicare and
whose effective dates are governed by 42 C.F.R. § 489.13, but not to suppliers, such as
Petitioner, whose Medicare enrollment is approved under Part 424, subpart P. CMS
points out that section 498.3(b)(15) was adopted “long before” the Medicare statute was
amended (by section 936(a)(2) of the Medicare Prescription Drug, Improvement, and
Modernization Act of 2003 (codified at 42 U.S.C. § 1395ce(j))) to permit suppliers not
subject to survey and certification or accreditation to appeal denials of applications for
enrollment (CMS Motion at 17) and that the regulations in Part 424 implementing the
2003 amendment permit such suppliers to appeal only denials and revocations of
enrollment.

CMS’s argument is not persuasive. A later statute does not elucidate the intended
meaning of a prior regulation. The wording of section 498.3(b)(15) is straightforward
and unambiguous in providing that the “effective date of a Medicare provider agreement
or supplier approval” is an appealable initial determination and includes no qualifying or
limiting language restricting its application to suppliers or providers subject to survey and
certification or accreditation. The question is not whether the drafters of that regulation
contemplated granting such rights to suppliers and providers who were not then covered
by the effective date determination criteria applicable to those requiring survey and
certification or accreditation. The question is whether, despite the plain language, the
drafters actually intended to affirmatively exclude other providers and suppliers who
might later gain appeal rights from challenging their effective date determinations.

While regulatory history and other sources of guidance are relevant in interpreting
language which is ambiguous, unclear in its application, or which leaves gaps, courts do
not resort to such interpretive tools when the wording is clear on its face. See, e.g.,
Connecticut Nat’! Bank v. Germain, 503 U.S. 249, 253-54 (1992) ([T]he “cardinal
canon” of construction is that a statute means what it says and, when unambiguous, “this
first canon is also the last: ‘judicial inquiry is complete.’”). CMS has not identified in
what respect the wording of section 498.3(b)(15) is ambiguous or unclear, or where the
language leaves a gap requiring interpretation to give it meaning. I thus find little room
for the interpretation CMS advances.

Moreover, the history on which CMS relies provides no clear indication that section
498.3(b)(15) was intended at the time of its issuance to mean anything other than what it
states, or to restrict challenges to effective date determinations as CMS now argues. The
provision that became section 498.3(b)(15) was first proposed in 1992 in a notice of
proposed rulemaking aimed at: (1) establishing “uniform criteria for determining the
effective date of participation for all Medicare and Medicaid providers and Medicare
suppliers”; and (2) specifying that “those dissatisfied with a decision on their effective
date of participation under Medicare are entitled to a Medicare hearing on the decision.”
57 Fed. Reg. at 46,363. While it is true that the rules for determination of the effective

6

dates in that rulemaking, which became final in 1997, apply “to all providers and
suppliers . . . subject to survey and certification ...or ... accreditation,” this does not
necessarily mean that the appeal rights added to Part 498 by the same rulemaking are
limited to those providers and suppliers. 62 Fed. Reg. at 43,934. The rulemaking that
granted the right to appeal an effective date determination contains no parallel language
limiting its application to only providers and suppliers that are subject to survey and
certification or accreditation.” The preamble to the final rule published in 1997 simply
states that it “[m]Jakes existing Medicare appeals procedures available, and requires
Medicaid agencies to make their existing appeals procedures available, for effective date
determinations.” Id..

Other discussions of appeal rights in the preambles to the 1992 proposed rule and the
1997 final rule evince no intent to restrict appeal rights in the way that CMS argues. The
1992 preamble indicates that prior practice had been inconsistent about whether the date
on which a prospective provider or supplier was entitled to participate in Medicare was a
“proper subject for Medicare hearings.” 57 Fed. Reg. at 46,362-63. Section 498.3(b)(15)
was intended to ensure that, when a provider or supplier is found not to meet conditions
of participation initially but is later found to meet Medicare requirements, the resulting
effective date could be appealed (even though participation was ultimately approved). Id.
While this discussion indicates that the drafters were thinking of the type of providers and
suppliers that then had appeal rights, it does not indicate any intent to restrict the scope of
appeals by others who might be granted the right to Medicare hearings. Furthermore, the
regulatory impact statement to the final rule published in 1997 indicates that the drafters
believed that court decisions had already confirmed a right to appeal effective date
determinations as analogous to denials of participation, even though that right had not
previously been codified in the regulations. 62 Fed. Reg. at 43,934. In addition, the 1997
preamble states that effective date hearings would, “for the most part,” focus on
noncompliance issues similar to those that arise in denial appeals, but does not state that
such appeals could only arise in that context. /d. I conclude that nothing in the
regulatory history of the addition of section 498.3(b)(15) demonstrates an intent to
restrict challenges to effective date determination to a subset of providers and suppliers,
as opposed to all providers and suppliers that then had appeal rights.

In fact, the long lag between the addition of effective date determinations to the list of
appealable initial determinations and the creation of an appeals process for denials of
enrollment applications cuts the other way. By the time in 2006 that CMS adopted
subpart P of Part 424 setting out enrollment requirements as a condition for participation
in Medicare (71 Fed. Reg. 20,753, 20,776 (Apr. 21, 2006)), CMS was well-aware of the
longstanding provision in section 498.13(b)(15), which it had described in 1997 as
granting “appeal rights and procedures for entities that are dissatisfied with effective date

> It is not possible to construe the limitation in the explanation of the scope of the
uniform effective determination rules to apply to the entire summary of the final rule’s
effect, because other clauses are clearly discussing the effects on other subsets of
providers (such as laboratories and community mental health centers).
7

determinations.” 62 Fed. Reg. at 43,931-32. While Part 424 unquestionably does grant
appeal rights from denials and revocations, as CMS notes, it does so by reference to the
provisions of subpart A of Part 498. CMS provided that a prospective provider or
supplier whose enrollment is denied or revoked “may appeal CMS’ decision in
accordance with part 498, subpart A of this chapter.” 42 C.F.R. § 424.545(a). Subpart A
of Part 498 includes section 498.3(b)(15), yet CMS did not exclude section 498(b)(15) or
otherwise indicate that the effective date determination would not be a proper subject for
these Medicare hearings. Hence, the plain language of section 424.545(a) reinforces the
plain language of section 498.3(b)(15).

CMS further argues that the “effective date of a ... supplier approval,” defined as an
appealable initial determination in section 498.3(b)(15), is “not... the effective date of
billing privileges as specified at 42 C.F.R. § 424.520” and contends that the term
“supplier approval” in section 498.3(b)(15) “tracks and references” the language of
section 489.13, which establishes the effective date of “supplier approval” for those
suppliers subject to survey and certification, or accreditation. CMS Motion at 17.

To the extent that CMS suggests that an ambiguity arises from the term “supplier
approval” referenced in section 498.3(b)(15), I am not persuaded that the language of
section 498.3(b)(15) bears a reading that excludes approval after submission of an
enrollment application, rather than after a survey and certification or after accreditation,
or by CMS’s assertion that it should be read to refer only to section 489.13. Section
489.13 merely codifies the provisions for uniform effective date determinations for all
providers and suppliers subject to survey and certification or accreditation, which were
adopted as part of the 1997 rulemaking. 62 Fed. Reg. at 43,931. That effective date
determinations under section 489.13(a)(1) are reviewable does not logically support a
conclusion that effective date determinations under other provisions are not reviewable.*
Section 489.13 is not the only provision for approval of suppliers to participate in
Medicare. Section 424.502 defines “approval” to mean the determination that the
supplier is “eligible under Medicare rules and regulations to receive a Medicare billing
number and be granted Medicare billing privileges.”° The effective date of such
approval for suppliers not requiring survey and certification or accreditation is governed
by sections 42 C.F.R. § 424.520(c), (d). Importantly, section 498.3(b)(15) does not state
that appealable initial determinations are limited to the effective dates of provider
agreements and supplier approvals under section 489.13.

* As one ALJ recently pointed out, in making this argument, CMS commits the
“syllogistic fallacy of the illicit major term: all A=B; no C=A; therefore, no C=B.”
Rushita Patel, M.D., DAB CR2129, at 3 n.3 (2010).

> CMS suggests that I should disregard this definition of supplier approval, because the
definitions in 42 C.F.R. § 424.502 are those “used in this subpart unless the context
indicates otherwise... .” CMS Motion at 18 n.8. It is in the same subpart, however, that
the regulations grant appeal rights under Part 498 to providers and suppliers whose
enrollment is denied. 42 C.F.R. § 424.545. Therefore, the definition of approval
applicable to those appeals would be the one at 42 C.F.R. § 424.502.
8

Given this definition of “approval” for suppliers, such as Petitioner, who are not subject
to survey and certification or accreditation, I am also not persuaded that use of “effective
date for billing privileges” in section 424.520 means that the effective date established
thereunder is something other than the effective date for which section 498.3(b)(15)
provides appeal rights. For such suppliers, the relevant approval by CMS and its
contractors is the determination that the supplier is eligible to participate in Medicare and
receive payment for Medicare services. The effective date of such approval is prescribed
by section 424.520(d) and is tied to the submission of an approvable enrollment
application. I note that the preamble to the notice of final rulemaking that implemented
section 424.520 describes the effective date provided in section 424.520(d) as “the initial
enrollment date” for those suppliers. 73 Fed. Reg. 69,726, 69,766 (Nov. 19, 2008).
Section 424.521 permits only a limited opportunity to bill for services provided prior to
the effective date of enrollment, which represented a significant change from prior
regulations that permitted physicians and non-physician practitioners to bill for services
provided “up to 27 months prior to being enrolled to participate in the Medicare
program.” Jd. at 69,766. That the elimination of the ability to bill retrospectively for 27
months meant that the effective date of a supplier’s approval to participate in Medicare
would in most cases also be the first date the supplier could provide services eligible for
Medicare payment (and would thus have much greater significance to suppliers than
under the prior practice) does not mean that the effective date of a “supplier approval” in
section 498.3(b)(15) is something other than the effective date established in section
424.520(d).

CMS cites ALJ decisions that have accepted some of its arguments above. CMS Motion
at 15. CMS cites: Mikhail Paikin, DO, DAB CR2064 (2010), holding that “the
regulatory history for 42 C.F.R. § 498.3(b)(15) . . . 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;” and Rachel Ruotolo, M.D., DAB CR2029 (2009), holding that
section 498.3(b)(15) was “inapplicable . . . as Petitioner does not contend that she was
entitled to an earlier effective date of enrollment; rather she argues about when she may
begin billing for her services.” I do not view those cases as supporting CMS’s arguments
here, however.

The ALJ in Paikin did not explain why he looked behind the face of the regulation to
read in a restriction that nowhere appears in its text, despite noting that “CMS
acknowledges that the plain language of 42 C.F.R. § 498.3(15) indicates that the
letermination of the effective date of a Medicare provider agreement or supplier
approval, is an initial determination that is subject to hearing and judicial review.” (DAB
CR2064, at 7). I note, moreover, that the ALJ still examined the underlying facts and
letermined that the effective date and retrospective billing date had been established
consistent with 42 C.F.R. §§ 424.520(d) and 424.521 (a). Jd. at 6. In Ruotolo, the
petitioner did not argue that she was entitled to an earlier effective date of enrollment but,
rather, disputed the brevity of the permitted period for retroactive billing by challenging
the lawfulness of the relatively newly enacted regulation mandated that result. Ruotolo,

9

DAB CR2029, at 3. Because the petitioner there was not arguing that she was entitled to
an earlier effective date, the ALJ found that 42 C.F.R. § 498.3(b)(15) was inapplicable to
that case. Jd. As in Paikin, the ALJ in Ruotolo also observed that CMS had correctly
applied the regulations governing the establishment of effective dates and retroactive
billing. The ALJ decisions CMS cites demonstrate no error in my conclusions that the
language is plain in granting appeal rights and that, in any case, the regulatory history
does not demonstrate any intent to exclude suppliers approved under Part 424 from the
purview of section 498.3(b)(15).

Additionally, in a number of recent cases, ALJs have concluded, as I do here, that the
plain language of section 498.3(b)(15) creates a right for any provider or supplier to
challenge the effective date of enrollment of a provider agreement or of supplier
approval. See, e.g., Rushita Patel, M.D., DAB CR2129 (2010); Michael Nillas, M.D.,
DAB CR2077 (2010); Blue Plastic Surgery Ctr., LLC, DAB CR2075 (2010); Kate
Suskin, LICSW, DAB CR2072 (2010); Victor Alvarez, M.D., DAB CR2070 (2010);
Romeo Nillas, M.D., DAB CR2069 (2010); Jorge M. Ballesteros, CNRA, DAB CR2067
(2010); Vincent Pirri, M.D., DAB CR2065 (2010). In so holding, the ALJs have relied
on the principle that where a regulation speaks clearly on its face and applies to the
question presented, they are bound to follow it. Andrew J. Elliott, M.D., DAB CR2103
(2010), for example, states:

CMS would have me ignore the plain meaning of the regulation. It
contends that this regulation predates the Part 424 regulations and was
intended to confer hearing rights only in situations not covered under Part
424. That argument is unpersuasive. The regulation is plain and
unambiguous.

I agree, and conclude that I am bound to follow the plain language of section
498.3(b)(15).

CMS also argues that its regulations “specifically state” that a provider or supplier has no
right to appeal from a rejection [as opposed to a denial] of its enrollment application.
CMS Motion at 14 (citing 42 C.F.R. § 424.525). CMS also points to section 434.545(b),
which affords a provider or supplier only the opportunity to submit “a rebuttal” when its
billing privileges are deactivated. CMS Motion at 11. Apparently, CMS would have me
conclude that these limitations demonstrate that only denials and revocations are subject
to appeal. None of the regulations CMS cites in its arguments contains any specific
statement, however, restricting suppliers from challenging adverse effective date
determinations. The explicit bar on appealing rejections and the limitation on review of
deactivations are thus not relevant to this appeal, because Petitioner has requested a
hearing for purposes of reviewing the effective date determined after its enrollment was
approved, not for the rejection of an application or deactivation of billing privileges. I
note, however, that these provisions amply illustrate that, when CMS wishes to restrict or
preclude appeal rights, it is capable of doing so expressly. CMS does not identify any
analogous provision limiting challenges to adverse effective date determinations.

10

Finally, I reject CMS’s argument that First Coast’s approval letter, affording Petitioner
the opportunity to contest the determination of the effective date, was based on an
erroneous interpretation of the regulations. CMS Ex. 6. CMS argues that, “[w]hile it is
true that CMS issued guidance in May 2009, directing its contractors to permit appeals of
effective date determinations for approved suppliers and providers, it later retracted such
guidance after determining that it was issued in error.” CMS Motion at 15 (citing Joint
Signature Memoranda (JSM) issued by CMS on May 7, 2009 and Nov. 2, 2009). CMS
argues that the policy guidance in the May 7, 2009 JSM “‘is not binding on this tribunal
and cannot be applied so as to conflict with applicable statutory and regulatory law” and
that the subsequently retracted policy “is not sufficient to provide appeal rights that do
not exist under the Medicare Act and regulations.” Jd. at 16. CMS further argues that
“CMS reiterated in its November 2, 2009, JSM that physicians and NPPs [non-physician
practitioners] can only appeal initial determinations that are the result of an initial
determination of enrollment denial or revocation and that physicians and NPP
practitioners cannot appeal the effective date decisions made by the contractor.” Id.
(citing CMS Ex. 14 (JSM Nov. 2, 2009) (emphasis in original)).

CMS’s discussion of its two policy issuances provides no basis to ignore the plain
language of section 498.3(b)(15) granting the right to appeal “[t]he effective date of a
Medicare provider agreement or supplier approval” and demonstrates no contrary
regulatory intent. As CMS itself notes, its policy guidance “cannot be applied so as to
conflict with applicable statutory and regulatory law.” Jd. at 16 (citing and quoting
Foxwood Springs Living Ctr., DAB CR1966, at 6 (2009) (“CMS policy issuances may
only be construed and applied consistently and in harmony with ‘controlling provisions
of the law - - the Act and the Secretary’s regulations.’”)).

The May 7, 2009 JSM nowhere suggested that it provided “new” appeal rights or that
new regulations would be proposed, or needed, to implement them. Instead, the first JSM
appears to have been issued as clarification based on the expectation that the substantial
reduction of the period for retroactive billing would cause many affected suppliers to
challenge effective date determinations. CMS’s presumption of effective date appeal
rights in that JSM undercuts CMS’s argument that subpart P of Part 424 precludes
challenges to effective dates, or that section 498.3(b)(15) excludes effective date appeals
by providers and suppliers not subject to survey and certification or accreditation.

I note that the language at section 498.3(b)(15) has been in place since 1997, and section
424.545 has been in place since 2006. However, as late as May 7, 2009, CMS expressly
read them as granting appeal rights for effective date determinations involving providers
and suppliers not subject to survey or accreditation (which obviously exist only after an
approval is granted but for a date subsequent to that sought by the provider or supplier).
CMS’s reversal of this position in the November 2, 2009 JSM thus does not merit any
controlling weight in light of the plain language of section 498.3(b)(15) and the absence
of any demonstrated intent to prohibit effective date appeals by providers and suppliers.
11
A legislative rule is generally binding on the agency that issues it, and the agency is
legally-bound to follow its own regulations as long as they are in force. California Dep't
of Soc. Servs., DAB No. 1959 (2005); Hermina Traeye Mem'l Nursing Home, DAB No.
1810 (2002) (citing Kenneth Culp Davis and Richard J. Pierce, Jr., Administrative Law
Treatise, § 6.5 (3rd ed. 1994)), aff'd Sea Island Comprehensive Healthcare Corp. v. U.S.
Dep't of Health and Human Servs, 79 F. App'x 563 (4th Cir. 2003); 2 Am. Jur. 2d
Administrative Law § 236. Absent further rulemaking, CMS and I are bound to follow
the plain meaning of the regulation permitting an appeal by any provider or supplier
dissatisfied with a determination as to the effective date of its provider agreement or
supplier approval.

c. Conclusion
Based on the foregoing, I deny CMS’s motion to dismiss.

I note, however, that a right to challenge the effective date is not a license to seek an
effective date other than that prescribed by law. I turn next, therefore, to what the
applicable law provides as to the proper effective date in Petitioner’s circumstances.

2. I grant CMS summary judgment on the ground that the effective date
of Petitioner’s participation in Medicare was properly determined
under 42 C.F.R. § 424.520(d).

a. Applicable standard
The Board stated the standard of review for summary judgment as follows.

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. Kingsville Nursing and Rehabilitation Center,
DAB No. 2234, at 3 (2009), citing Celotex Corp. v. Catrett, 477 U.S. 317,
322-25 (1986). While the Federal Rules of Civil Procedure (FRCP) are not
binding in this administrative appeal, we are guided by those rules and by
judicial decisions on summary judgment in determining whether the ALJ
properly granted summary judgment. See Thelma Walley, DAB No. 1367
(1992) .... 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. Kingsville at 3, citing
Celotex, 477 U.S. at 323. If the moving party carries its initial burden, the
non-moving party must “come forward with ‘specific facts showing that
there is a genuine issue for trial.” Matsushita Elec. Industrial Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986) (quoting FRCP 56(e)). 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,
12

would affect the outcome of the case under governing law. Jd. at 586, n.11;
Celotex, 477 U.S. at 322. 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. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).

Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300, at 3 (2010). The role of an ALJ in
deciding a summary judgment motion differs from the ALJ’s role in resolving a case after
a hearing. The ALJ should not be assessing credibility or evaluating the weight of
conflicting evidence. Holy Cross Village at Notre Dame, DAB No. 2291, at 4-5 (2009).

b. Analysis

The determination of the effective date of Medicare billing privileges is governed by 42
C.F.R. §§ 424.520 and 424.521. Section 424.520(d) provides that the effective date for
billing privileges for physician, nonphysician practitioners, and physician and
nonphysician practitioner organizations is “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 or nonphysician practitioner first began furnishing services at a
new practice location.” (Emphasis added). The “date of filing” is the date that the
Medicare contractor receives a signed provider enrollment application that the Medicare
contractor is able to process to approval. 73 Fed. Reg. 69,769 (emphasis added).

Certain suppliers, including physicians, may be permitted to bill retrospectively for
certain services provided before approval, if they have met all program requirements.
Current regulations limit retrospective billing to 30 days prior to the effective date, “if
circumstances precluded enrollment in advance of providing services to Medicare
beneficiaries,” or 90 days in certain disaster situations. 42 C.F.R. § 424.521 (a).

In this case, although the application for Petitioner and his practice that First Coast
approved was received on May 22, 2009, First Coast assigned an effective date of May
24, 2009, on the ground that this was “[t]he date requested on the application.” CMS
Exs. 6, at 2-3. However, upon reconsideration, First Coast acknowledged that it had
received the application on May 22, 2009 and granted Petitioner a 30-day retrospective
billing period correctly determined to be effective April 22, 2009, pursuant to 42 C.F.R.
§ 424.521(a). CMS Ex. 9, at 3.

Petitioner does not dispute these facts, or that First Coast’s reconsideration determination
was consistent with the applicable regulations. He also does not dispute that the first
application he submitted on or about December 12, 2008 was not approvable as
submitted but states he has no record of Medicare having returned the application. He
does not, however, dispute that First Coast returned the application to the address listed
on it (from which he had moved). CMS Motion at 20-21 (citing CMS Exs. 1, 2).
Petitioner also states that he had thought that the reason he was not being reimbursed for
services “had something to do with our billing software” and points to notices of denials
13
of claims for services he provided during the period February 24 through April 24, 2009
that were sent to his old practice.° P. RH. He states that “I realize proper steps weren’t
taken to ensure my participation” and cites the “tumultuous journey” of opening a new
practice, hiring staff, and treating patients. P. RH.

The regulation is clear in providing that the earliest date of Medicare eligibility is the date
that the contractor received a subsequently-approved application. Petitioner has not
established or even argued that the application he submitted in December 2008 was
approvable or should have been approved, or that an approvable application was
submitted at any time prior to the application that First Coast received on May 22, 2009.
Thus, as a matter of law, the earliest effective date of the approval of his application was
May 22, 2009, and the earliest date for the beginning the period of retrospective billing
was April 22, 2009. Although Petitioner states that he heard nothing from First Coast
subsequent to First Coast’s letter acknowledging receipt of Petitioner’s application, he
also made no efforts to inquire about the status of the application for enrollment, despite
being aware that his claims were being denied. The circumstances Petitioner describes
provide no basis to ignore the clear requirements of the regulations, by which I am
bound.

c. Conclusion

The earliest effective date for the approval of Petitioner’s enrollment in Medicare was
May 22, 2009, with retrospective billing privileges permitted back to April 22, 2009. See
42 C.F.R. § 424.521(a). Thus Petitioner’s request for an earlier effective date must be
denied.

Because there is no genuine issue to any material fact, and for the foregoing reasons, I
grant CMS’s motion for summary disposition.

/s/
Leslie A. Sussan
Board Member

° In support of his argument that he was not aware that First Coast had not approved his
application, as I noted above, Petitioner submitted, with his request for hearing, seven
pages of “Medicare Remittance Notices” from First Coast reflecting the denial of claims
for service during February through April 2009, addressed to what Petitioner identifies as
his old practice. These notices provide no support for concluding that the initial
application was complete and approvable and hence are not material to the issue of the
appropriate effective date.