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From Health Law Daily, January 8, 2015

Request to reconsider effective Medicare billing date must be timely filed

By Harold M. Bishop, J.D.

A federal district court has concurred with an administrative law judge (ALJ) and Departmental Appeals Board (DAB) finding that a CMS contractor properly set the effective Medicare billing date for a physician based on the physician’s second provider application. The physician had asked the CMS contractor to reconsider its decision and base his effective billing date on an initial application that had been denied. The CMS contractor, however, found that the reconsideration request on the initial application had not been timely filed and therefore he had no authority to review it (Ramaswamy v. Burwell, January 6, 2015, Hamilton, J.).

Background. On May 4, 2011, Karthik Ramaswamy, M.D. (Ramaswamy) submitted an application for enrollment in the Medicare program to Wisconsin Physician Services (WPS). Because WPS found Ramaswamy’s initial application incomplete, on May 24, 2011, it allegedly contacted Ramaswamy’s representative to request a correction of the initial application. According to HHS, WPS’ records showed no response from Ramaswamy to this request for correction as of June 29, 2011. Based on that alleged lack of response, WPS claimed it sent Ramaswamy a letter on June 29, 2011, denying the application. Then on May 1, 2012, Ramaswamy requested that WPS reconsider its initial determination to deny his initial enrollment application. The HHS record was unclear what the result of that request was, and Ramaswamy claimed it was not considered in any way, but the Administrative Law Judge (ALJ) and Departmental Appeals Board (DAB) found it was dismissed by HHS as untimely.

Ramaswamy’s version differed considerably. According to Ramaswamy, his representative responded to WPS’ May 24, 2011 correction request by submitting materials via facsimile. Ramaswamy also claimed to have had no contact with WPS, including the June 29, 2011 letter HHS alleges was sent to him, until October 17, 2011. On that day, Ramaswamy’s representative allegedly made a phone call to WPS to inquire regarding the status of his application and spoke to a WPS customer service representative who stated that all necessary materials had been received and that the enrollment application was in process. An additional call was allegedly made by Ramaswamy’s representative on December 14, 2011, when he was again told that the application was in process.  It was not until March 28, 2012 that Ramaswamy’s representative was verbally informed by WPS that the application was denied effective June 29, 2011.

It was undisputed that Ramaswamy submitted a second application on May 15, 2012, which was approved by HHS on July 9, 2012, with an effective Medicare billing date of April 21, 2012. Ramaswamy then requested reconsideration of the April 21, 2012 billing date and WPS returned an unfavorable decision.  The ALJ affirmed WPS’ decision and the ALJ’s decision was affirmed by the DAB. Ramaswamy then sought judicial review of the DAB’s decision.

ALJ/DAB decisions. The ALJ found, and the DAB concurred, that: (1) WPS correctly determined the effective date of Ramaswamy’s enrollment based on the May 15, 2012 application; and (2) it had no authority to review WPS’ dismissal of the request for reconsideration Ramaswamy filed in relation to his May 4, 2011 application.

The ALJ reasoned that because WPS received a complete, approvable application on May 21, 2012, it properly determined this date as the effective billing date.  The applicable regulations permit limited retrospective billing for physician services provided to Medicare beneficiaries for up to 30 days before the effective date of enrollment. As such, WPS correctly determined that Ramaswamy could retrospectively bill for services provided to beneficiaries beginning on April 21, 2012.

With regard to its lack of authority to review WPS’ dismissal of the request for reconsideration, the ALJ found that WPS dismissed Ramaswamy’s request for reconsideration on May 18, 2012, because it had not been timely submitted and Ramaswamy had not shown good cause for the late filing. The ALJ noted that only reconsidered determinations related to the denial or revocation of billing privileges are eligible for ALJ review and an ALJ does not have authority to inquire into a Medicare contractor’s determination whether there is good cause for the late filing of a request for reconsideration.

The ALJ found that WPS never issued a reconsidered determination concerning the May 4, 2011 applications. Instead, it found that WPS dismissed Ramaswamy’s request for reconsideration as untimely. Therefore, in the absence of a reconsidered determination from WPS, the ALJ concluded that the initial determination became binding and administratively final. As a result, the ALJ concluded that its review was limited to the application filed in May 2012, and that Ramaswamy’s earlier application was not relevant to its decision in this case.

Court decision.  The district court found that Ramaswamy failed to show that the ALJ’s and DAB’s interpretation of the applicable regulations were not entitled to deference. According to the court, the regulations establish a detailed set of procedures for enrollment, which includes procedures to be followed for exercising appeal rights. The ALJ and DAB found that this detailed scheme is exclusive—that if the regulations do not explicitly establish a right to appeal in a particular situation, no right to appeal exists in that situation. While this may not be the only possible interpretation of the regulations and while it may in certain situations be unfair, the court found that it was not plainly erroneous or inconsistent with the regulations.

The court therefore concluded that there was no legal basis on which to review WPS’ initial determination regarding Ramaswamy’s May 4, 2011 enrollment application, and Ramaswamy’s attempt to establish an effective billing date of April 7, 2011 failed.

Summary judgment was granted to HHS and Ramaswamy’s complaint was dismissed with prejudice.

The case number is 4:14CV971(JCH).

Attorneys: Mark Faccenda (Fulbright and Jaworski, LLP) for Karthik Ramaswamy. Andrew J. Lay, Office of U.S. Attorney, for Kathleen Sebelius.

MainStory: TopStory CaseDecisions ProviderNews CMSNews CoPNews MedicareContractorNews PartBNews MissouriNews

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