Goffney v. Becerra, __ F.3d __, No. 19-56368, 2021 WL 1682249 (9th Cir. Apr. 29, 2021)
Application to reactivate Medicare billing privileges sought a new “enrollment,” triggering a new (rather than retroactive) effective billing date.
Dr. Willie Goffney is a surgical oncologist who has provided services to Medicare patients since 1991. In 2005, Dr. Goffney stopped receiving reimbursement payments for his Medicare claims, but continued to provide services. In 2012, Dr. Goffney was informed that his billing privileges had been deactivated since 2008 for not submitting a claim for more than a year. In 2015, he filed a Medicare Enrollment Application to reactivate his billing privileges, seeking to maintain his original 1991 effective billing date and to be paid for the services he provided while his Medicare privileges were inactive. Although his application was approved, Dr. Goffney’s Medicare contractor assigned a new effective date of August 31, 2015, which precluded him for being reimbursed for the prior services. The contractor categorized Dr. Goffney’s reactivation application as an “enrollment application” under 42 C.F.R. § 424.520(d), which defines the effective date for billing as the application’s approval date.
Dr. Goffney appealed through the administrative channels, all of which affirmed the contractor’s decision. Goffney then sought review in federal district court, which likewise affirmed the contractor’s decision. The district court explained that the regulation’s silence about whether “effective dates” could be set at a past date created an ambiguity, meaning the agency’s interpretation was entitled deference and their interpretation of the regulation was reasonable. Goffney appealed.
The Ninth Circuit affirmed, concluding the Health and Human Services Departmental Appeal Board had reasonably interpreted Goffney’s reactivation request as an “enrollment application” under section 424.520(d). First, the court found that section 424.520(d) was “genuinely ambiguous” as to whether reactivation applications should be classified as enrollment applications that trigger new effective dates, and other regulations do not resolve that ambiguity. The Board’s reasonable interpretation of the regulation qualified for deference under Auer v. Robbins, 519 U.S. 452, 461 (1997), and Kisor v. Wilkie, 139 S. Ct. 2400 (2019). First, the Board’s decision was an authoritative “official” statement of the agency. Second, the Board’s decision implicated its substantive expertise in administering the Medicare program. Third, the interpretation reflected a “fair and considered judgment” since it was consistent with certain regulations and a CMS contractor guidebook.
The bulletin describing this appellate decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy LLP, and is republished with permission.
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