2013 DAB and CRD Decisions Relating to Provider Enrollment Accreditation, Certification, and Enrollment Affinity Group

Transcription

1 2013 DAB and CRD Decisions Relating to Provider Enrollment Accreditation, Certification, and Enrollment Affinity Group The U.S. Department of Health & Human Services (HHS) Departmental Appeals Board (DAB) and Civil Remedies Division (CRD) provide impartial, independent review of disputed decisions in a wide range of programs under the authority of more than 60 statutory provisions. The outcomes in DAB and CRD cases related to Medicare enrollment provide health care lawyers with a better understanding of Medicare enrollment rules and current regulatory enforcement trends. For this reason, the Accreditation, Certification, and Enrollment Affinity Group has been monitoring DAB and CRD decisions relating to Medicare enrollment. Monica Wallace, Emily Cook, Adam Marks, Laura Morgan, and Matt Smith of McDermott Will & Emery LLP and Adam Romney of Davis Wright Tremaine LLP have provided the following enrollment-related DAB and CRD decision summaries for 2013 year to date. To read DAB and CRD decisions from previous years, or for the full text of DAB and CRD decisions referenced in these summaries, visit the HHS website. DAB decisions are available at and CRD decisions are available at

2 Departmental Appeals Board Decisions Revocation of Medicare Enrollment and Billing Privileges February 4, 2013 Docket No. A Decision No Medicare regulations provide that a supplier s Medicare billing privileges may be revoked if the supplier certifies as true any misleading or false information on the enrollment application. 1 Additionally, to enroll and maintain enrollment in the Medicare program, a physician must report to the Medicare contractor within 30 days any adverse legal action. 2 The Petitioner, Conchita Jackson, MD, submitted a Medicare enrollment application on November 4, 2010, indicating on the application that she had no final adverse legal actions imposed against her. In fact, she was suspended from Florida s Medicaid program at that time, which constitutes an adverse legal action for Medicare enrollment purposes. Because of the Petitioner s failure to disclose this adverse legal action, First Coast Service Options (FCSO), a Centers for Medicare & Medicaid Services (CMS) contractor, revoked the Petitioner s Medicare enrollment and billing privileges effective May 4, 2011 and informed the Petitioner that she was not eligible to reapply for enrollment for three years. FCSO also informed the Petitioner that she could appeal this decision by submitting a corrective action plan (CAP) or by requesting a reconsideration. The Petitioner asserted that she timely submitted a CAP and requested reconsideration around June 6, FCSO sent the Petitioner a letter on September 2, 2011, informing her that she could not be enrolled in Medicare based on the information in the CAP because the CAP was incomplete, did not mention the sanction by the Florida Medicaid program, and did not verify that she was in compliance with Medicare enrollment requirements. Additionally, on January 25, 2012, FCSO sent the Petitioner a letter denying her reconsideration request, stating that FCSO did not receive all requested information in 1 42 C.F.R (a) C.F.R (d)(ii). 2

3 a timely manner, affirming that FCSO properly revoked the Petitioner s Medicare enrollment based on Medicare guidelines, and barring the Petitioner from reapplying for three years. The Petitioner appealed this decision, and on September 19, 2012, analj sustained FCSO s decision to revoke the Petitioner s Medicare enrollment, but concluded that he did not have the authority to review FCSO s denial of the CAP. The Petitioner then appealed the ALJ s decision to the DAB. The DAB held that the ALJ did not err in upholding the revocation of the Petitioner s Medicare enrollment. The DAB further held that the ALJ did not err in determining that he did not have the authority to review FCSO s denial of the CAP, as the refusal by CMS or one of its contractors to reinstate a supplier after a correction attempt [which includes a CAP] is not listed as an action that constitutes an initial determination subject to administrative appeal under [Medicare regulations]. The Petitioner also challenged FCSO s failure to afford her the opportunity to complete the CAP. The DAB found that the Petitioner was provided at least 30 days to correct the CAP, consistent with Medicare regulations and policies, and a decision to deny the Petitioner an opportunity to complete a CAP is not an initial determination subject to review by an ALJ or the DAB. Therefore, the DAB upheld the ALJ s decision to sustain FCSO s revocation of the Petitioner s Medicare enrollment and barring her from reapplying for enrollment for three years. Civil Remedies Division Decisions Effective Date of Medicare Enrollment January 4, 2013 Docket No. C Decision No. CR2682 Medicare regulations at 42 C.F.R (d) provide that [t]he effective date of billing privileges for physicians... 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... first began furnishing services at a new practice location. 3

4 Furthermore, the date of filing is the date that the Medicare contractor receives an application that is signed and ready for approval. 3 In this Civil Remedies Division decision, the Petitioner, Armin Aalami Harandi, MD, claimed that he mailed a Medicare enrollment application to Wisconsin Physicians Service Insurance Corporation (WPS), a Medicare contractor, around October 19, 2011, but he did not send the application via certified mail and could not provide proof showing that he mailed a completed application at that time. After learning that WPS had not received this application, the Petitioner submitted a new application, which WPS received on March 15, 2012 and subsequently approved effective as of that date. The Petitioner appealed the March 15, 2012 effective date, arguing that because WPS lost his first application, the date he allegedly submitted that first application should control (amounting to a claim of equitable estoppel). However, the ALJ found that the equitable estoppel claim failed because the Petitioner did not allege any affirmative misconduct by WPS. Further, because the Petitioner had submitted no evidence establishing that his earlier application was received by WPS, and since an effective date is the date of filing of a Medicare enrollment application that was subsequently approved, the alleged earlier filing date was disregarded. Therefore, the ALJ granted the Centers for Medicare & Medicaid Services Motion for Summary Disposition and upheld the effective date of March 15, Effective Date of Medicare Enrollment Skilled Nursing Facilities January 14, 2013 Docket No. C Decision No. CR2688 Medicare regulations at 42 C.F.R (b)(1) provide that the effective date for Medicare participation for a skilled nursing facility is the date the State agency, CMS [the Centers for Medicare & Medicaid Services], or the CMS contractor survey... is completed... if on that date the provider or supplier meets all applicable Federal requirements Fed. Reg , (Nov. 19, 2008). 4

5 However, the effective date of the agreement or approval may not be earlier than the latest of the dates on which CMS determines that each applicable Federal requirement is met. These federal requirements include enrollment requirements. 4 To meet these enrollment requirements, a provider or supplier must submit a complete enrollment application and supporting documentation to the designated Medicare fee-for-service contractor. 5 Each submitted application must include... complete, accurate, and truthful responses to all information requested within each section as applicable to the provider or supplier type. 6 In this CRD decision, the Petitioner, Mason Round Rock OP LLC, submitted an application for Medicare enrollment as a skilled nursing facility to Trailblazer Health Enterprises (Trailblazer) on December 21, After a series of requests by Trailblazer for clarification and further documentation, which the Petitioner fulfilled, Trailblazer submitted a letter to the Texas Department of Health on February 8, 2012 recommending approval of the Petitioner s application and requesting an on-site survey. On May 7, 2012 the Petitioner received CMS notification that its application had been approved and that February 8, 2012 would be the effective date of its provider agreement. The Petitioner filed a timely request for reconsideration of CMS February 8, 2012 determination, contending that January 13, 2012 was the date of the Petitioner s state licensure and Medicaid certification. After CMS issued an unfavorable reconsideration determination, the Petitioner filed a hearing request with the CRD. The ALJ affirmed CMS determination that the Petitioner s effective date of enrollment was February 8, The ALJ concluded that because of the omissions and inconsistencies in the Petitioner s original application, CMS did not err in determining it received the Petitioner s complete and accurate application on February 8, after the Petitioner submitted clarifications to its CMS 855A enrollment application. The Petitioner argued that the corrections Trailblazer requested were not substantial. The ALJ held that regardless of how Petitioner characterizes the corrections... Trailblazer was acting in good faith to obtain clarifications to incomplete or inaccurate information, and that [CMS] should not have to take extra steps because the applicant is not careful Fed. Reg , (May 4, 2012) C.F.R (d)(1) C.F.R (d)(2)(i). 5

6 The Petitioner also contended that CMS and Trailblazer delayed processing its application. The ALJ found that not only was the processing timeline of the Petitioner s application reasonable, but that the timeline, in fact, showed that the Petitioner s inaction contributed to a longer processing period. Moreover, CMS notification to the Petitioner of the approval of its application on May 7, 2012 was well within the timeframe required by CMS Medicare Program Integrity Manual guidelines. The ALJ, therefore, upheld CMS determination of the February 8, 2012 effective date as legitimate. Enrollment Criteria Social Workers January 17, 2013 Docket No. C Decision No. CR2692 In order to participate in the Medicare program as a supplier, individuals and entities must meet certain criteria to enroll and receive billing privileges. 7 For Medicare purposes, a clinical social worker is an individual who: (1) possesses a master s degree or doctoral degree in social work; (2) has performed at least two years of supervised clinical social work after receiving his or her degree; and (3) is licensed or certified as a clinical social worker by the state in which the services are performed. 8 In this Civil Remedies Division decision, the Petitioner, Donna Jolley, LCSW, applied to enroll in Medicare as a clinical social worker. On July 9, 2012 WPS denied the Petitioner s application indicating that she did not meet the conditions of enrollment or qualify as a clinical social worker under Medicare requirements. The Petitioner requested reconsideration, and WPS responded with an unfavorable reconsidered determination, highlighting that the Petitioner s Masters in Science degree and counseling coursework and major [did] not meet the compliance requirements for enrollment as a clinical social worker under Medicare C.F.R , C.F.R (a). 6

7 The ALJ affirmed WPS denial of the Petitioner s application because the Petitioner did not meet the statutory or regulatory requirements to enroll in Medicare as a clinical social worker. In support of the opinion, the ALJ referenced the master s degree or doctoral degree in social work requirement, and further provided that nothing in the statute or the regulations provides that an individual may qualify to provide clinical social work services with a degree that fails to precisely satisfy the criteria to participate as a clinical social worker. The ALJ rejected the Petitioner s contention that her past enrollment in Medicare as a clinical social worker established a precedent under which her new enrollment should be granted. Effective Date of Medicare Enrollment and Grounds for Hearing Request Dismissal February 7, 2013 Docket No. C Decision No. CR2704 Medicare regulations at 42 C.F.R (d) provide that [t]he effective date for billing privileges... 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. The date of filing is the date that the Medicare contractor receives a signed provider enrollment application that the contractor is able to process to approval. 9 A party seeking to challenge an assigned enrollment effective date must file a request for hearing in writing within 60 days of the day she receives notice of the determination that she wishes to appeal, unless the appeal period is extended. 10 On his or her own motion, or on the motion of a party to the hearing, [an] Administrative Law Judge ( ALJ ) may dismiss a hearing request either entirely or as to any stated issue if the affected party did not file a [timely] hearing request and the time for filing has not been extended. 11 In this CRD decision, the Petitioner, Ifeoma Igbokwe, NP, submitted an application for enrollment in the Medicare Part B program to Trailblazer Health Enterprises (Trailblazer). In 9 73 Fed. Reg , (Nov. 19, 2008) C.F.R (a)(2) C.F.R (c). 7

8 a letter dated February 11, 2011 Trailblazer advised her that her application had been received on January 18, 2011, and that it was approved with an effective billing date of December 20, The Petitioner sought reconsideration of the assigned effective date, and Trailblazer ultimately acknowledged in a notice letter dated May 25, 2011 that it had overlooked the Petitioner s paper-filed application. The Petitioner s enrollment effective date was changed December 13, 2010, which in turn allowed her to bill for services provided as early as November 14, The May 25, 2011 correspondence also advised the Petitioner of her appeal rights, specifically noting that the appeal must be filed within 60 calendar days after the date of receipt of this decision. The notice letter further instructed the Petitioner to submit her appeal to the CRD. The Petitioner submitted her appeal challenging the assigned enrollment effective date to the CRD one year and three months after the May 25, 2011 notice letter. The documentation submitted to the CRD also included evidence that the Petitioner had previously submitted an appeal letter to an ALJ in Baltimore, MD, although there had not been any further correspondence with that ALJ. According to the Petitioner s documentation, the letter was delivered to the Baltimore ALJ on November 14, The ALJ deciding this matter dismissed the Petitioner s hearing request as untimely. The ALJ noted that the Petitioner had not filed a written request for extension, and that the appeal was submitted to the CRD significantly beyond the 60-day timeframe provided for in the regulations. The ALJ was willing to consider the Baltimore submission as a valid hearing request, but even still, the estimated submission date of November 9, 2011 far exceeded the 60-day regulatory mandate. In the alternative, the ALJ also concluded that Petitioner s effective date of enrollment in the Medicare program can be no earlier than December 13, 2010, the date she filed the enrollment application accepted by Trailblazer. The ALJ s conclusion was based largely on the fact that the Petitioner provided no evidence to suggest that she submitted a subsequently approved enrollment application any earlier than December 13, Effective Date of Medicare Enrollment and Retrospective Billing Privileges February 14,

9 Docket No. C Decision No. CR2708 Medicare regulations at 42 C.F.R (d) provide that [t]he effective date for billing privileges... 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. The date of filing is the date that the Medicare contractor receives a signed provider enrollment application that the contractor is able to process to approval. 12 CMS allows certain practitioners and organizations to retrospectively bill for services for up to 30 days prior to their enrollment effective date if circumstances precluded enrollment in advance of the provision of services to Medicare beneficiaries. 13 In this Civil Remedies Division decision, the Petitioner, James Jung, DPM, submitted a supplier enrollment application to Palmetto GBA (Palmetto). His initial application was rejected because he failed to provide a date next to his signature. Subsequently, the Petitioner again submitted an enrollment application to Palmetto, and on July 13, 2012 Palmetto approved the application, setting a February 25, 2012 effective date. The Petitioner filed a timely request for reconsideration of Palmetto s July 13, 2012 determination. Palmetto explained in a reconsidered determination that the Petitioner s application was received on March 26, 2012, and that since February 25, 2012 was 30 days prior to the date on which his application was received, the correct effective date had been granted. Thereafter, the Petitioner filed a request for hearing by an ALJ. The ALJ affirmed Palmetto s determination that the Petitioner s effective date of enrollment is March 26, 2012, with a retrospective billing period commencing on February 25, The ALJ concluded that, because Palmetto received the Petitioner s completed application on March 26, 2012, Palmetto properly assigned this date as the effective date for billing privileges. Further, in accordance with 42 C.F.R (a), the ALJ determined that the earliest effective date for retrospective billing privileges that could be granted was 30 days Fed. Reg , (Nov. 19, 2008) C.F.R (a). 9

10 prior to March 26, 2012, or February 25, Thus, the ALJ concluded that Palmetto also correctly determined the retrospective billing date. The ALJ dismissed the Petitioner s argument that an earlier date should be granted based on his previously filed, rejected application, explaining that CMS decision to reject an application is not subject to appeal. 14 The ALJ also rejected the Petitioner s contention that an earlier date should be granted because [Petitioner] spoke with a CMS representative while his application was pending and felt assured that all claims would be paid after the application was processed. The ALJ characterized the Petitioner s argument as a claim of equitable estoppel against CMS, which, under well-established law, must be rejected. Revocation of Medicare Enrollment Because Provider Was Non-Operational March 5, 2013 Docket No. C Decision No. CR2715 Medicare regulations at 42 C.F.R (a)(5) provide that CMS may revoke a provider s enrollment if it determines, upon on-site review, that a provider is no longer operational to furnish Medicare covered items or services. A provider is operational when it is open to the public for the purpose of providing health care related services, is prepared to submit valid Medicare claims, and is properly staffed, equipped, and stocked to furnish these items of services. 15 CMS may perform on-site reviews whenever it deems it necessary to determine whether a provider is no longer operational. 16 In this CRD decision, the Petitioner, I&S Healthcare Services LLC, was enrolled in the Medicare program as a home health agency. On June 7, 2012 an inspector for Palmetto, a Medicare administrative contractor, arrived at the Petitioner s office to conduct an unannounced site visit. The inspector noted that the Petitioner s facility was not open for business, did not have employees or staff present, and had no indications of customer activity. Additionally, the Petitioner had posted a sign that read I&S Healthcare Services LLC This is a notice of Voluntary Suspension of Normal Business Operations Effective C.F.R (d) C.F.R C.F.R (d)(8). 10

11 March 23, 2012 to October 1, 2013 Administration. Given the results of the site visit, Palmetto revoked the Petitioner s Medicare enrollment in an initial determination dated July 24, 2012, to be effective as of March 23, The Petitioner filed a request for reconsideration, stating that it had closed its operations following CMS February 2012 suspension of its provider status. The Petitioner indicated that it had been unable to reinitiate operations by the time of the on-site visit" due to administrative obligations and actions it had to take to comply with CMS reinstatement requirements. The Petitioner further argued that its inability to provide services is not the result of its own doing or operational decisions, but of the actions they [sic] have had to take to be able to comply with CMS requirements after the initial revocation of billing privileges. The Petitioner stated that it is ready to start again, as soon as the billing privileges are reinstated and Palmetto GBA finishes the revalidation process. On September 18, 2012 CMS issued an unfavorable reconsidered determination. Thereafter, the Petitioner filed a hearing request with the CRD. The ALJ affirmed CMS revocation of the Petitioner s enrollment. The ALJ found that the Petitioner had suspended its operations, was not staffed, was not open to the public, and was not providing services when the site inspector conducted the survey. Additionally, the ALJ concluded that CMS had a legal basis under Medicare regulations to revoke the Petitioner s enrollment. The ALJ did not accept the Petitioner s argument that a suspension of operations for approximately a year and a half, as indicated on the posted sign, is a temporary cessation of operations analogous to a temporary closing due to holidays or emergencies. In further support of his conclusions, the ALJ noted that CMS possesses discretion to revoke a provider s enrollment. 17 The ALJ also recognized that his right to review a CMS determination serves only to determine whether CMS had the authority to revoke the billing privileges, and not to substitute the ALJ s discretion about whether or not to revoke. Right to Administrative Law Judge Hearing March 11, 2013 Docket No. A C.F.R (a). 11

12 Decision No Medicare regulations at 42 C.F.R (I)(1) permit a supplier to appeal an initial determination by CMS to revoke a supplier s Medicare enrollment. A supplier dissatisfied with such a determination may request reconsideration as long as the reconsideration request is filed [w]ithin 60 days from receipt of the notice of initial determination, unless the time is extended [by CMS for good cause ]. 18 A supplier dissatisfied with a reconsidered determination... is entitled to a hearing before an [administrative law judge (ALJ)]. 19 DAB decisions have held, however, that only reconsidered determinations related to the denial or revocation of billing privileges are eligible for ALJ review. 20 In this Civil Remedies Division decision, the Petitioner, Haissam Elzaim, MD, closed his sole ownership practice and the bank account associated with the practice in August 2010, without officially terminating the practice under Medicare through a CMS-855I form. Medicare contractor Trailblazer issued three revocation notices to the Petitioner between March 31, 2011 and November 10, 2011 after Trailblazer discovered from the Petitioner s financial institution that the Petitioner s bank account had been closed. The November 10, 2011 notice informed the Petitioner of the revocation of his billing privileges and the imposition of a one-year re-enrollment bar because the Petitioner had not submitted the electronic funds transfer documents Trailblazer requested in previous notices. The notice stated that the Petitioner had a right to request reconsideration of the determination by filing a request within 60 days of the letter s postmark date. The Petitioner requested reconsideration on February 14, 2012 after the mailed notices were faxed to him on January 25, Trailblazer, however, denied the Petitioner s request because it was received past the [initial 60-day] time limit. The Petitioner filed a request for hearing by an ALJ, claiming that he had not received Trailblazer s mailed revocation notices since they had been sent to his closed sole C.F.R (b), (d) C.F.R (I)(2) (emphasis added). 20 Denise A. Hardy, D.P.M., DAB No. 2464, at 4 (2012) (quoted in Better Health Ambulance, DAB No. 2475, at 4 (2012)). 12

13 ownership practice addresses. The Petitioner argued he only became aware of Trailblazer s revocation notices when he contacted Trailblazer employees after all Medicare payments stopped and the employees subsequently faxed copies of the notices to him. The Petitioner did not deny that he failed to submit the requisite CMS form to terminate his practice; however, the Petitioner contended that he submitted Medicare forms in August 2011 to update his information, including his address, but Trailblazer failed to use his updated mailing address due to an administrative error. The ALJ dismissed the Petitioner s hearing request on his own motion, determining that the Petitioner did not have a right to a hearing because there was no reconsidered determination subject to ALJ review. The Petitioner then appealed the ALJ s decision to the DAB. The DAB found that the ALJ did not err in dismissing the Petitioner s request, holding that neither the [DAB] nor the ALJ are authorized to address the issues raised by the Petitioner. The DAB noted that Trailblazer never issued a reconsideration determination and that, in the absence of a reconsidered determination subject to further review, Trailblazer s initial determination to revoke the Petitioner s billing privileges was binding. Revocation of Medicare Enrollment and Billing Privileges March 13, 2013 Docket No. C Decision No. CR 2724 CMS may revoke a supplier s billing privileges if, within the preceding ten years, she was convicted of a federal or state felony offense that CMS has determined to be detrimental to the best interests of the [Medicare] program and its beneficiaries. 21 Offenses for which billing privileges may be revoked include financial crimes such as extortion, embezzlement, income tax evasion, insurance fraud, and other similar crimes for which the individual has been convicted, including guilty pleas and adjudicated pretrial diversions C.F.R (a)(3) C.F.R (a)(3)(i)(B). 13

14 In this case, the Petitioner pled guilty in the Circuit Court of Holmes County, FL, to one count of second degree grand theft, admitting that she stole more than $20,000 from her hospital employer. In a ruling dated December 28, 2006 the state judge accepted her plea but withheld adjudication. He sentenced her to five years supervised probation, ordered her to perform 150 hours of public service work, and ordered her to pay restitution as well as court costs. She was neither incarcerated nor fined. The Petitioner argued that her billing privileges were not subject to revocation because she was not convicted of a felony. Ultimately, the state court judge did not sentence her to jail time or impose a fine, which suggests that she successfully completed her period of probation. The ALJ found that the plain language of the regulation compels me to find that, for purposes of her Medicare participation, Petitioner Laurel was convicted of a felony, notwithstanding the provisions of state law. The ALJ explained that the DAB has characterized as well established the principle that the term conviction includes diverted, deferred and expunged convictions, regardless of whether state law treats such actions as a conviction. Because the undisputed evidence established that the Petitioner was convicted of a felony offense detrimental to the best interests of the Medicare program and its beneficiaries, the ALJ found that CMS was entitled to judgment as a matter of law. Revocation of Medicare Enrollment and Billing Privileges March 15, 2013 Docket No. C Decision No. CR2726 Medicare regulations at 42 C.F.R (b) and (a)(2) provide that in order for a physician to enroll in Medicare as a supplier, the physician must be legally authorized to 14

15 practice in the state in which he or she performs services, and must be acting within the scope of his or her license. Medicare regulations also require a physician to report any adverse legal action and any change in practice location to the relevant contractor within 30 days. 23 CMS may revoke a physician s Medicare billing privileges if a physician is not in compliance with the enrollment or reporting requirements specified in 42 C.F.R (b) and 42 C.F.R (d)(1)(ii),(iii), respectively. 24 In this CRD decision, the Petitioner, Amanda Wendel, MD, was enrolled as a Medicare supplier. On June 21, 2012 WPS, a Medicare administrative contractor, informed the Petitioner that WPS was revoking her billing privileges because the Petitioner was no longer licensed to practice medicine in Iowa and had failed to report the expiration of her license to WPS. The Petitioner s medical license expired on June 1, However, because the Petitioner was moving to Illinois and because she was informed by the Iowa Board of Medicine that she could continue practicing during a 60-day grace period following the expiration of her license, the Petitioner did not renew her Iowa license. The Petitioner acknowledged her oversight of not sending appropriate documentation regarding her relocation to Illinois, which she subsequently corrected. On July 19, 2012 WPS acknowledged receipt of the Petitioner s request for reconsideration of the revocation. After WPS denied the Petitioner s reconsideration request in letters dated September 6, 2012 and October 5, 2012, the Petitioner requested a hearing by letter on September 17, 2012, and such request was received by the CRD on October 22, The ALJ reversed CMS determination to revoke the Petitioner s Medicare billing privileges. In support, the ALJ cited a letter by the Iowa Board s director of licensure and administration, which stated that a licensee has a two month grace period following the expiration date of their [sic] license in which they [sic] can renew [his or her] license. The ALJ determined that a physician s license to practice does not become invalid in Iowa until 60 days after the license s expiration date. Under Iowa law, the ALJ held that the Petitioner remained authorized to practice until August 1, As a result, the ALJ held that on June 21, 2012 the Petitioner met the Medicare licensure requirement in 42 C.F.R (b) C.F.R (d)(1)(ii) and (iii) C.F.R (a)(1), (a)(9). 15

16 and 42 C.F.R (a)(2) because the licensing rules of Iowa are the controlling authority with regard to whether a physician is legally authorized to practice and is acting within the scope of his or her license. As of June 1, 2011 the ALJ further concluded that there was nothing for the Petitioner to report to WPS under 42 C.F.R (a)(9). Effective Date of Enrollment and Billing Privileges April 8, 2013 Docket No. C Decision No. CR2750 HHS regulations provide that the effective date of enrollment of physicians 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... first began furnishing services at a new practice location. 25 On March 20, 2012 WPS received the Petitioner s Medicare enrollment application. On June 11, 2012 WPS approved the Petitioner s Medicare enrollment application with an effective date of March 20, 2012 and a retrospective billing date of February 19, The Petitioner asserted that he submitted a completed earlier Form CMS-855I and CMS-855R on December 5, 2011, and therefore is entitled to an earlier enrollment. Mecosta Health Services (MHS) is wholly owned by Mecosta County Medical Center (MCMC). MHS also does business as MHS Surgical Specialists. MHS Surgical Specialists employs the Petitioner, Dr. Pearson. On October 1, 2011 MHS and MHS Surgical Specialists submitted change-of-ownership forms to CMS in order to bring those entities under the umbrella of MCMC. As a result of the change of ownership all the physicians working for these entities, including Pearson, had to file new reassignment forms, Form 855Rs. In October 2011 most of the physicians submitted their Form 855Rs to CMS. However, Pearson was on vacation and was unavailable to sign his reassignment form. Pearson signed the reassignment form on November 8, Terri Underhill, a coder at C.F.R (d). 16

17 MHS, states in her affidavit that she received Pearson s reassignment form in late November or early December Upon receipt of Pearson s form, Underhill placed it in a certified mail envelope and sent it to WPS by placing it in MHS internal mail system to be posted. She states she posted another mailing to WPS also in late November or early December Underhill attached two certified mail receipts from WPS to her affidavit as evidence of her mailings. She states that she is confident that Pearson s application was in one of those two mailings. As the Petitioner stated in his brief, WPS admittedly misplaced something from Dr. Pearson s employer and there are no documents missing other than Dr. Pearson s original application. CMS provided two affidavits. Kim Richmond, the manager of the Provider Enrollment Department at WPS, states that the first application that WPS received from Pearson was on March 20, Richmond asserts that there is no record of receiving an earlier application from Pearson signed November 8, Richmond agrees that two certified mail packages were received from MHS on December 5, It is agreed by the parties that one package had documents not relevant to the Petitioner. A second certified mail package from MHS was received by the WPS mail room but was never received by the WPS Provider Enrollment Department; its contents and final whereabouts are unknown. The Petitioner presented this information for the first time at the ALJ level of appeal. The Petitioner s November 8, 2011 application, the certified mail receipt dated December 5, 2011, Schafer affidavit, and Underhill s affidavit were not provided to during the reconsideration stage. CMS regulations preclude an ALJ from considering documentary evidence that had not been presented to CMS prior to requesting a hearing, absent a showing of good cause for submitting the new evidence for the first time at the ALJ-hearing level. Therefore, the ALJ indicated that he would not consider the new evidence. 17

18 Even if the Petitioner had properly submitted this evidence the ALJ explained that he would not have accepted this argument. The ALJ explained: Even if I were to consider the two certified mail receipts and the affidavits submitted by Petitioner, this evidence merely shows that WPS received two packages from MHS on December 5, One package definitely did not contain Dr. Pearson s application. The second package was received by the WPS mail room but it did not reach the WPS Provider Enrollment Department. The contents of the second package are unknown. It is only speculation that the second package contained Dr. Pearson s approvable application signed November 8, MHS itself has no independent record of what was in the second package. Lastly, the ALJ held that equitable estoppel also prevented him from granting the Petitioner s request for an earlier effective date. The ALJ explained the Petitioner s arguments amount to a claim of equitable estoppel, and that it is well established by federal case law, and in Board precedent, that: (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) an ALJ is not authorized to order payment contrary to law based on equitable grounds. 26 Accordingly, the ALJ affirmed WPS determination that the Petitioner s effective date of enrollment is March 20, 2012, with a 30-day retrospective billing period commencing on February 19, Effective Date of Enrollment and Medicare Billing Privileges 26 See, e.g., Armin Aalami Harandi, DAB CR2682 (2013); Office of Personnel Mgmt. v. Richmond, 496 U.S. 414 (1990); Heckler, 467 U.S. at 51; Oklahoma Heart Hosp., DAB No. 2183, at 16 (2008); Wade Pediatrics, DAB No. 2153, at 22 n.9 (2008), aff d, 567 F.3d 1202 (10th Cir. 2009). 18

19 May 1, 2013 Docket No. C Decision No. CR2771 On May 4, 2011 the Petitioner mailed to WPS an initial Medicare enrollment application (Form CMS-855I) and a reassignment of benefits application (Form CMS-855R) seeking to reassign his Medicare payments to Physicians Groups LC. WPS received the applications on May 9, On May 24, 2011 WPS requested additional information to process the Petitioner s applications. The letter indicated that WPS could deny the applications if the additional information was not received within 30 days of May 24, The Petitioner s employee, Ms. Camp, testified that she responded to WPS request by submitting via facsimile materials responding to WPS request and a certification statement (Form CMS-855I Section 15) signed by the Petitioner. A facsimile transmission report shows that a facsimile was sent on May 24, 2011 to WPS and was received by WPS. CMS asserts that WPS has no record of receiving the requested information on May 24, 2011, or at any time prior to June 29, Camp states that she called WPS on October 17, 2011 and again on December 14, 2011, and was informed each time that the enrollment application was in process. She asserts that she attempted to contact WPS on January 17, 2012, and on March 19, 2012, left messages, but WPS did not return her telephone calls. On March 28, 2012 Camp called WPS and was verbally informed that the Petitioner s application had been denied by letter dated June 29, 2011, because the Petitioner had not supplied the requested information within 30 days of the May 24, 2011 request. Camp asserts that neither she nor anyone else in her organization received written notice of the denial. Camp requested written notification of the purported denial and received it via facsimile on April 3, The Petitioner submitted a request for reconsideration of the June 29, 2011 denial determination on May 1, The Petitioner asserted that he had furnished the requested 19

20 information in a timely manner and that he had not received a copy of the June 29, 2011 denial letter until April 3, WPS dismissed the Petitioner s request for reconsideration on May 18, 2012 because it had not been timely submitted and the Petitioner had not shown good cause for the late filing. A provider or supplier may request reconsideration by filing a request for reconsideration within 60 days from receipt of the notice of initial determination, unless CMS or its agent determines there is good cause for extending the deadline. If a supplier does not request and receive reconsideration of an initial determination, then the initial determination is binding. Only reconsidered determinations related to the denial or revocation of billing privileges are eligible for ALJ review. In this case, the ALJ found that because WPS never issued a reconsidered determination concerning the May 4, 2011 applications, the initial denial determination became binding and, therefore, administratively final. The ALJ determined that it could not consider the Petitioner s May 4, 2011 applications. Revocation of Medicare Billing Privileges May 14, 2013 Docket No. C Decision No. CR2785 The Petitioner was a podiatrist licensed to practice in Kansas and Missouri, and participated in the Medicare program. By five letters, all dated August 3, 2012, WPS notified the Petitioner that it was revoking his Medicare billing privileges. WPS did not allege specific facts in the letters, but rather quoted 42 C.F.R (a)(8), titled Abuse of billing privileges, as its basis for revoking the Petitioner s billing privileges. WPS also established a three-year bar on the Petitioner s re-enrollment in the Medicare program. 20

21 On August 28, 2012 the Petitioner requested reconsideration. The Petitioner asserted that the letters from WPS violated regulatory requirements for revocation notices and claimed that WPS refused to provide him with additional details about the revocation when he inquired. The Petitioner stated that he did not submit a corrective action plan because he cannot correct a problem about which he is unaware. After further efforts to obtain the documents that CMS and WPS relied on to revoke the Petitioner s billing privileges, the Petitioner received that material on October 2, Relevant to this case, CMS may revoke a provider s or supplier s billing privileges if the provider of supplier submits a claim or claims for services that could not have been furnished to a specific individual on the date of service. These instances include, but are not limited to, situations where the beneficiary is deceased, the directing physician or beneficiary is not in the state or country when services were furnished, or when the equipment necessary for testing is not present where the testing is said to have occurred. In support of its motion for summary judgment, CMS presented the results of an investigation that showed the Petitioner submitted Medicare claims for services that could not have been provided to the beneficiaries identified in the claims because either the beneficiaries were deceased on the dates of the claimed services or the claimed services involved medical care to six or more toes for beneficiaries who only had one foot. In response, the Petitioner did not dispute that his billing agent, D.A.R.E. Foot Care, submitted the claims in question. The Petitioner conceded that one of the claims at issue was not the result of the billing agent, but the Petitioner s documentation oversight. However, with regard to all claims, the Petitioner qualified them as billing mistakes, accidental, and not rising to the level of abuse required by regulation. 21

22 The ALJ found that the Petitioner s evidence did not create a dispute about whether he or his agent submitted the claims at issue to Medicare, or about whether those claims identified deceased beneficiaries as receiving treatment. Therefore, the ALJ found that the Petitioner did not come forward with evidence to refute CMS evidence that showed he submitted claims for services that could not have been provided to a specific beneficiary because that beneficiary was dead. Accordingly, the ALJ found that because it was undisputed that the Petitioner ultimately billed Medicare for services when the patient named in the claim died before the date of service, and that the Petitioner also billed Medicare for services performed on six to ten toes when the patient named in the claims had one leg amputated, CMS was authorized to revoke the Petitioner s Medicare billing privileges. The Petitioner attempted to shift blame for the improper claims onto the company acting as his billing representative. In response, the ALJ explained that if the Petitioner s agent is improperly billing Medicare for services, this conduct is just as harmful as if the Petitioner is doing so directly. The Petitioner s failure to properly supervise the billing for services is not a defense because otherwise CMS would have no means to stop improper billing. In fact, suppliers would be protected when acting through an agent. The Petitioner did not allege that D.A.R.E. Foot Care falsely or fraudulently misused his supplier number to bill for services or that he did not authorize them to bill Medicare on his behalf. Therefore, the ALJ found that the Petitioner alone was responsible for the accurate billing of his services. 22