SUBJECT:

Malorie Smith,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

Petitioner, Malorie Smith, appeals a Medicare Part B Hearing Officer's decision that she does not qualify for a Medicare provider number as a nurse practitioner. For the reasons discussed below, I affirm the Hearing Officer's decision.

Background

Medicare Part B is a supplementary medical insurance program for the aged and disabled. Social Security Act (Act), sections 1831-1848. Among other benefits, the Part B program will pay for "physician services" that are provided by a nurse practitioner who is legally authorized under state law to provide those services. Act, section 1861(s)(2)(K),(ii). The statute defines "nurse practitioner" as an individual who performs such services as she is legally authorized to perform under state law, and who meets training, education, and experience requirements set by the Secretary of Health and Human Services in his regulations. Act, section 1861(aa)(5)(A).

By regulation, services provided by a registered nurse (RN) may qualify for Medicare Part B coverage if the RN is authorized by state law (of the state in which the services are furnished) to practice as a nurse practitioner, and she meets certain other requirements. 42 C.F.R. � 410.75. Those requirements vary, depending on when she first applies (or applied) for her Medicare billing number. If she first applies after January 1, 2003, she must: 1) be a registered nurse, authorized by her state to practice as a nurse practitioner; 2) be certified as a nurse practitioner by a recognized national certifying body; and 3) possess a masters degree in nursing. 42 C.F.R. � 410.75(b)(4). On the other hand, if she first applied for a Medicare billing number before January 1, 2003 - but on or after January 1, 2001 - she had to be a registered nurse authorized by her state to practice as a nurse practitioner, and be certified by a recognized national certifying body; she did not have to possess a masters degree. 42 C.F.R. � 410.75(b)(3). ⁽¹⁾

Here, Petitioner Smith does not possess a masters degree. She nevertheless argues that she is entitled to a Medicare billing number because, in June 2002, she submitted an enrollment application form - HCFA 855 (1/98) ⁽²⁾ - to the Medicare carrier, Wisconsin Physicians Service Corporation (WPS). She concedes that her application was returned to her for a physician signature, but claims that she returned the appropriately signed application to WPS by overnight mail on December 30, 2002. CMS responds that WPS has no record of Petitioner's having submitted any application until August 16, 2004. Further, according to CMS, on November 1, 2001, CMS replaced HCFA 855 with a new form, CMS 855 (11/2001). As the carrier widely publicized, after December 31, 2001, it no longer accepted HCFA 855, and returned all applications that used the obsolete form with instructions that the applicant submit the proper application form.

In any event, in August 2004, Petitioner filed another enrollment application, submitting the correct form, CMS 855. WPS identified problems with that application, and, after a series of communications between the carrier and Petitioner, she submitted a revised application, CMS 855R, on October 8, 2004. By letter dated October 26, 2004, WPS denied Petitioner Smith's application, because she did not meet the regulatory requirements for her specialty (she had no masters degree). 42 C.F.R. � 410.75; WPS Ex. 1. The notice advised the Petitioner of her right to request a hearing before a carrier hearing officer. Petitioner requested such review, and, in a decision dated March 23, 2005, the carrier hearing officer affirmed the carrier determination. Petitioner Smith now appeals the carrier hearing officer decision. ⁽³⁾ The matter was initially assigned to Judge Marion T. Silva, and, following her departure from the Civil Remedies Division, the matter is before me for decision.

The parties have submitted their briefs in support (CMS) and in opposition (Petitioner) to the hearing officer's decision. (CMS Br. and P. Br.). CMS has also submitted exhibits marked CMS Exs. 1-14, and exhibits from the carrier hearing, which are marked WPS Exs. 1-22. Petitioner has submitted no marked exhibits, but attached to its brief a declaration signed by Petitioner (Crawford Decl.), which we have marked P. Ex. 1, to conform to Civil Remedies procedures. ⁽⁴⁾ The parties also filed Reply briefs (CMS Reply and P. Reply). In an order dated October 12, 2006, I directed the parties to advise me whether any additional proceedings were required to complete the record of this case, and, if so, to show good cause for conducting additional proceedings. By letter dated October 16, 2006 (P. Letter), Petitioner advised us that no additional proceedings are required to complete the record. In a letter dated October 17, 2006 (CMS Letter), CMS agreed that the record could be closed and a decision issued.

Discussion

1. Petitioner is not eligible to participate in the Medicare program because she does not meet the requirements of 42 C.F.R. � 410.75: she does not possess a masters degree, and she did not, prior to January 1, 2003, file a valid application for a Medicare billing number. ⁽⁵⁾

Petitioner concedes that she does not possess a masters degree, but argues that she is nevertheless eligible to participate in Medicare as a nurse practitioner because she applied for a Medicare billing number prior to January 1, 2003. 42 C.F.R. � 410.75(b)(3) and (4). She asserts that in June 2002 she submitted to WPS "Medicare provider enrollment form 1/98 HCFA 855, signed by my supervising physician, Dr. Robert Mackie." She also claims that the form "was returned" to her in December 2002 with a request for the signature of Dr. Timothy Tetzlaff, CEO of Riverside Medical Associates, P.C. Dr. Tetzlaff's signature "was obtained," and the form "was sent" via overnight mail on December 30, 2002. Receiving no response, she submitted the updated Medicare provider enrollment application, CMS 855I, about twenty months later, in August 2004. P. Ex. 1, at 2 (Crawford Decl. �� 6-9).

CMS questions Petitioner's assertions, pointing out that Petitioner offers no credible evidence that she submitted any application, and the carrier has no record of having received anything from her before August 2004. See, CMS Br., at 12-14. ⁽⁶⁾ I need not resolve this question, however, because the document Petitioner purports to have submitted in 2002 - HCFA 855 - was not then a valid enrollment application, as Petitioner knew or should have known. P. Ex. 1, at 2 (Crawford Decl �� 7, 8); WPS Ex. 5, at 2-10.

On November 1, 2001, CMS replaced HCFA 855 with an enrollment application form labeled CMS 855. In a program memorandum dated October 12, 2001, CMS instructed Medicare carriers to accept and process all "1/98 versions of HCFA 855" only through December 31, 2001, and to return to the applicant "all 1/98 versions of Form HCFA 855 postmarked after and received by you for the first time after December 31, 2001." CMS Ex. 1, at 1. Both CMS and WPS publicized the change on their web sites, and, in its publication, Medicare Part B Communique, the carrier repeatedly announced the change. CMS Exs. 2-6; CMS Ex. 10 (Bolger Decl.). In a posting dated October 31, 2001, CMS explained that it had simplified the enrollment form with the goal of eliminating unnecessary delays in processing. CMS Ex. 2, at 1. In its November 2001 Communique, WPS announced that the new forms would arrive on or about November 1, 2001, that providers and suppliers would use the forms to apply for a Medicare provider number, and that WPS would accept the old enrollment applications through December 31, 2001.

After December 31, any initially submitted application on the old enrollment forms will be returned with a letter indicating that only the new version of the enrollment forms is acceptable.

CMS Ex. 3, at 2. The December 2001 Communique contained more detailed information on the change in forms, and again cautioned that "all 1/98 versions" postmarked and received after December 31, 2001, would be returned. CMS Ex. 4, at 2. The February 2002 Communique contained the following bold-captioned announcement:

MEDICARE ENROLLMENT APPLICATIONS - REMINDER

Medicare contractors are now processing the new CMS-855 enrollment applications dated 11/2001. The old versions [dated 1/98] of the 855, 855R and C postmarked after 12-31-01 are no longer accepted. WPS does not track these outdated applications and returns them along with the new applications for completion.

CMS Ex. 5, at 2. Finally, in yet another conspicuous announcement, the April 2002 Communique reminded those wishing to enroll in the Medicare program that they "must use new forms," announced that the forms were available from CMS online, and gave specific information on obtaining them. CMS Ex. 6, at 2.

Petitioner does not challenge these facts, but argues, without citation to any authority, that she "cannot be held responsible for [CMS's] failure to respond to either her June 2002 or her December 2002 Medicare provider enrollment application." P. Br. at 7. But the "application" Petitioner submitted was not a valid provider enrollment application, and for that Petitioner is responsible. It is well-settled that anyone who seeks to participate in the Medicare program has a duty to familiarize herself with its requirements. See, Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 64 (1984). Here, in a publication available to all Medicare participants and other interested parties, WPS repeatedly published notice of the changed enrollment application forms. Further, as CMS points out and Petitioner does not dispute, Petitioner's employer, Riverside Medical Associates, actually received those publications. CMS Ex. 10, at 2-3 (Bolger Decl. �3). Petitioner thus knew, or should have known, how to file a valid application, but instead she submitted an obsolete, and invalid, form. This may be a purely "procedural requirement," but valid "procedural requirements" must be enforced to the same degree as substantive requirements. See Schweiker v. Hansen, 450 U.S. 785, 790 (1981) ("A Court is no more authorized to overlook the valid regulations requiring that applications be in writing than it is to overlook any other valid requirement for the receipt of benefits.")

Conclusion

Here, Petitioner admits that she does not possess a masters degree. She qualifies for a Medicare billing number only if she applied for it prior to January 1, 2003. The enrollment application she claims to have submitted prior to January 1, 2003, was obsolete, and did not constitute a valid enrollment application. She therefore does not qualify for a Medicare provider number as a nurse practitioner, and I therefore affirm the Hearing Officer's decision.

Carolyn Cozad Hughes

Administrative Law Judge

1. A registered nurse authorized by her state to practice as nurse practitioner who had a Medicare billing number prior to January 1, 2001, was allowed to continue participation in the program without meeting additional requirements. 42 C.F.R. � 410.75(b).

2. "HCFA" is the acronym for the Health Care Financing Administration. "HCFA" was renamed "CMS" in 2001. HCFA 855 was apparently issued in January 1998, hence the parenthetical, "(1/98)."

3. Section 1866(j)(2) of the Social Security Act creates appeal rights for Medicare providers and suppliers whose applications to enroll or renew enrollment in the program have been denied. See section 936(a)(2) of the Medicare Prescription Drug, Improvement and Modernization Act of 2003, Pub. L. No. 108-173. Regulations governing review are found at 42 C.F.R. Part 498, and include hearings before an administrative law judge, with the right to request review by the Departmental Appeals Board.

4. Petitioner's references to exhibits are somewhat confusing. She does not distinguish the CMS exhibits from the WPS exhibits, referring throughout her brief to both as "Respondent's Brief in Supp. Of Hearing Officer's Dec." exhibits. She also refers to "Crawford Exs." A, C, and D. She subsequently explained that these exhibits are in the record as WPS Exs. 10, 5, and 20, respectively. P. Letter (October 16, 2006).

5. I make this one finding of fact/conclusion of law to support my decision.

6. CMS notes that overnight express mail is much costlier than the $1.75 Petitioner claims she spent to overnight express mail her application. Petitioner's December 30, 2002 postal receipt for $1.75 could not, therefore, have been a receipt for an overnight express mailing. WPS Ex. 5, at 10. CMS also points out that the carrier returned Petitioner's October 2004 application with a request for Dr. Tetzlaff's signature; it seems unlikely that she would have made the exact same omission twice. CMS Br. at 13-14.