Mariam Shehata, MD, DAB CR6630 (2025)

DECISION

Petitioner reassigned her right to file claims with and receive payment from Medicare to Inland Imaging Associates PS effective October 28, 2023, and the period for retrospective billing began September 28, 2023.

I.  Background and Undisputed Facts

Petitioner, who is a physician, wanted to reassign to Inland Imaging Associates, PS (Inland), a practice group or organization, her right to file claims with and receive payment from Medicare for services provided to Medicare-eligible beneficiaries.  Petitioner filed Medicare enrollment applications with Noridian Healthcare Solutions, the Medicare administrative contractor (MAC), on April 26, 2022, January 12, 2023, October 3, 2023, and November 27, 2023, to accomplish the reassignment to Inland.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 11, 55, 65, 92, 135.

The MAC rejected the reassignment applications filed April 26, 2022, January 12, 2023, and October 3, 2023.  CMS Ex. 1 at 61, 89, 131.

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The MAC processed to approval the reassignment application filed on November 27, 2023.  The MAC notified Petitioner of its initial determination by letter dated December 12, 2023.  The initial determination shows the MAC approved Petitioner’s reassignment of her Medicare claims and billing privileges to Inland effective October 28, 2023.  CMS Ex. 1 at 8.

Petitioner requested a reconsidered determination by letter dated January 9, 2024.  Petitioner requested that her reassignment effective date be changed to August 1, 2022, when she started working at Inland.  CMS Ex. 1 at 7.  It is not disputed that Petitioner began providing care and services at Inland on August 1, 2022.

A MAC hearing officer issued a reconsidered determination on April 8, 2024.  CMS Ex. 1 at 1-5.  The hearing officer, citing 42 C.F.R. § 424.521(a)(1)(i) (which provides for retrospective billing), determined that based on the MAC’s November 27, 2023 receipt of the application processed to approval, October 28, 2023, was the earliest possible date that could be granted Petitioner and Inland billing privileges based on the reassignment.  CMS Ex. 1 at 3.  As discussed hereafter, the hearing officer was in error because she failed to consider the application of 42 C.F.R. § 424.522(a), which is specifically related to the determination of the effective date of reassignment and affects the authorized period for retrospective billing.

On June 7, 2024, Petitioner filed a request for hearing (RFH) before an administrative law judge (ALJ).  The case was assigned to me on June 11, 2024, and my Standing Order was issued.  On July 2, 2024, CMS filed a motion for summary judgment (CMS Br.) with CMS Exhibit 1.  Petitioner filed a response in opposition to the CMS motion for summary judgment (P. Br.) on August 23, 2024.  CMS filed a wavier of reply on August 28, 2024.  Petitioner did not object to my consideration of CMS Exhibit 1, and it is admitted as evidence.

II.  Discussion

1. Applicable Law

Section 1831 of the Social Security Act (the Act) (42 U.S.C. § 1395j) establishes the supplementary medical insurance benefits program for the aged and disabled known as Medicare Part B.  Payment under the program for services rendered to Medicare-eligible beneficiaries may only be made to qualified providers of services and suppliers.1  Act

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§§ 1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395(u)(h)(1)).  Qualified providers and suppliers are those who have a provider agreement or supplier approval, if required; are enrolled in Medicare; and are granted billing privileges.  42 C.F.R. pt. 424, subpt. P; pt. 489.  Administration of the Part B program is through the MACs.  Act § 1842(a) (42 U.S.C. § 1395u(a)).

Congress required the Secretary of Health and Human Services (the Secretary) to prescribe regulations for the administration of Medicare, Medicaid, and other federal health care programs.  The Act requires the Secretary to issue regulations that establish a process for the enrollment of providers and suppliers, including the right to a hearing and judicial review of certain enrollment determinations.  Act §§ 1866(h)(1), (j)(1)(a), (8), 1871(a) (42 U.S.C. §§ 1395cc(h)(1), (j)(1)(a), 1395hh).

Pursuant to 42 C.F.R. § 424.505,2 a provider or supplier must be enrolled in the Medicare program and be issued a billing number to have billing privileges and be eligible to receive payment for services rendered to a Medicare-eligible beneficiary.  The Medicare beneficiary, one who is entitled to benefits under Medicare Part A or enrolled under Part B, is the individual covered by Medicare and entitled to request payment for Medicare-covered health care items and services.  Act § 1802.  The assignment of the right to file a claim for Medicare coverage of health care charges from a Medicare beneficiary to a

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Medicare-enrolled provider or supplier is limited.  The reassignment of the right to file a Medicare claim from an enrolled provider or supplier to another is very limited.  42 C.F.R. Part 424, subpart F.  Reassignment to an employer is permitted from a supplier, such as a physician, when reassignment is required as a condition of employment.  42 C.F.R. § 424.80(b)(1).  Reassignment to an entity that bills for a supplier’s services pursuant to a contractual arrangement is also permitted.  42 C.F.R. § 424.80(b)(2), (5).

The effective date of enrollment in Medicare of physicians, nonphysician practitioners, and physician and nonphysician practitioner organizations is governed by 42 C.F.R. § 424.520(d)(1).  Generally, the effective date of enrollment for physicians, nonphysician practitioners, or physician and nonphysician practice groups may only be the later of two dates:  the date of receipt of the application for enrollment that was subsequently approved by a MAC charged with reviewing the application on behalf of CMS; or the date when the physicians, nonphysician practitioners, or physician and nonphysician practice groups first began providing services at a new practice location.  42 C.F.R. § 424.520(d)(1).  But in 2021 CMS adopted 42 C.F.R. § 424.522(a) that provides that a reassignment of benefits is effective 30 days before the MAC received the reassignment application.  86 Fed. Reg. 62,240, 62,419 (Nov. 9, 2021).  The hearing officer overlooked the application of 42 C.F.R. § 424.522(a) to Petitioner’s reassignment application.

An enrolled physician, nonphysician practitioner, or a physician or nonphysician group may retrospectively bill Medicare for services provided to Medicare-eligible beneficiaries up to 30 days prior to the effective date of enrollment, if circumstances precluded enrollment before the services were provided.  Retrospective billing for up to 90 days prior to the effective date of enrollment is permitted only in case of a Presidentially declared disaster pursuant to 42 U.S.C. §§ 5121-5207.  42 C.F.R. § 424.521(a)(1)(ii).  Nothing in the regulations or in the regulatory history for 42 C.F.R. §§ 424.520(d) or 424.522(a) indicates retrospective billing does not apply to a reassignment application so long as all applicable Medicare requirements are met during the period of retrospective billing.3  There is no evidence or allegation that Petitioner failed to meet all applicable Medicare requirements during the period when retrospective billing is permitted in this case.

The Secretary has issued regulations that establish the right to a hearing and judicial review of certain enrollment determinations.  Act § 1866(j) (42 U.S.C. § 1395cc(j)).  Pursuant to section 1866(h)(1) and (j)(8), a provider or supplier whose enrollment application or renewal application is denied is entitled to an administrative hearing and

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judicial review.  Pursuant to 42 C.F.R. § 498.3(b)(15), a provider or supplier’s effective date of enrollment is an initial determination that is subject to administrative review by an ALJ after a reconsidered determination.  42 C.F.R. § 498.5(l)(1)-(2).  The regulations at 42 C.F.R. §§ 424.545 and 498.5 specify review and appeal rights in provider and supplier cases.  The regulations do not specifically state that a supplier has a right to ALJ review of a CMS or MAC determinations related to reassignment of the right to file claims with and receive payment from Medicare, including the effective date of reassignment.  42 C.F.R. §§ 424.70-.90, 424.545, 498.3(b), 498.5.  However, the Board has given an expansive interpretation to 42 C.F.R. § 498.3(b)(15) and found a right to ALJ review of the effective date of enrollment in Medicare; the effective date of the reactivation of billing privileges; and the effective date of the reassignment of the right to file claims with and receive payment from Medicare.  See, e.g., Victor Alvarez, M.D., DAB No. 2325 at 3-10 (2010) (determination of effective date of enrollment in Medicare is an initial determination subject to ALJ review and Board appeal); Urology Group of NJ, LLC, DAB No. 2860 at 6 (2018) (no right to review of a CMS or MAC determination to deactivate billing privileges but right to review of the determination of the effective date of reactivation); Gaurav Lakhanpal, MD, DAB No. 2951 (2019) (upholding ALJ review of challenge to effective date of reassignment).  An ALJ does not review the initial determination of the MAC, as the only determination subject to review is the reconsidered determination.  See 42 C.F.R. § 498.5(l)(1)-(2); Neb Group of Ariz. at 7.

2. Issue

The issue in this case is: 

Whether the effective date of Petitioner’s reassignment of the right to file claims with and receive payment from Medicare is October 28, 2023, with the period for retrospective billing beginning September 28, 2023.

3. Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold text followed by my findings of undisputed fact and analysis.

1. Summary judgment is appropriate in this case.

Petitioner is entitled to a hearing on the record before an ALJ under the Act.  Act §§ 205(b); 1866(h)(1), (j)(8); Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004).  However, when summary judgment is appropriate, no hearing is required.  The Board has long accepted that summary judgment is an acceptable procedural device in cases adjudicated pursuant to 42 C.F.R. pt. 498.  See, e.g., Crestview Parke, 373 F.3d at 748-51; Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009); Garden City Med. Clinic, DAB No. 1763 (2001); Everett Rehab. & Med. Ctr., DAB No.

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1628 at 3 (1997).  The Board has accepted that Fed. R. Civ. P. 56 and related cases provide useful guidance for determining whether summary judgment is appropriate.  I advised the parties in the Standing Order that summary judgment is an available procedural device and that the law as it has developed related to Fed. R. Civ. P. 56 will be applied.  Standing Order ¶¶ D, G.  Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and/or the moving party is entitled to judgment as a matter of law.  See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 5 (2012) (and cases cited therein); Experts Are Us, Inc., DAB No. 2452 at 5 (2012) (and cases cited therein); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3 (2010) (and cases cited therein).

The undisputed facts set forth above are the facts necessary to resolve this case.  There is no genuine dispute of material fact.  CMS is entitled to judgment as a matter of law and summary judgment is appropriate.  

2. October 28, 2023, 30 days prior to the date the MAC received the reassignment application it processed to approval, is the effective date of Petitioner’s reassignment of the right to file claims with and receive payment from Medicare.  42 C.F.R. § 424.522(a).
3. September 28, 2023, is the first day of the 30-day period for retrospective billing authorized under 42 C.F.R. § 424.521(a)(1). 

Petitioner seeks review of the MAC’s reconsidered determination of the effective date of the reassignment of Petitioner’s right to file claims with and obtain payment from Medicare for care and services delivered to Medicare-eligible beneficiaries.

The regulations are clear, and their application is uncomplicated.  The effective date of a reassignment of Medicare claims and billing privileges is 30 days prior to the date on which the MAC received the application it processed to approval.  42 C.F.R. § 424.522(a).  The date of filing of an enrollment application is the date on which the Medicare contractor receives a signed enrollment application that the MAC can process to approval.  42 C.F.R. § 424.510(d)(1); 73 Fed. Reg. 69,726, 69,766-67 (Nov. 19, 2008); Alexander C. Gatzimos, MD, JD, LLC, DAB No. 2730 (2016).  The burden is on Petitioner, not the government, to demonstrate that the MAC or CMS received the requisite enrollment forms, and that Petitioner met all enrollment requirements.  42 C.F.R. § 424.545(c).  

Petitioner’s reassignment application that was processed to completion was the application received by the MAC on November 27, 2023.  Therefore, October 28, 2023, is the effective date of Petitioner’s reassignment to Inland pursuant to 42 C.F.R. § 424.522(a).

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An enrolled physician may retrospectively bill Medicare for services provided to Medicare-eligible beneficiaries at the enrolled practice location for up to 30 days prior to the effective date of enrollment, if circumstances precluded enrollment before the services were provided.4  42 C.F.R. § 424.521(a)(1).  Therefore, as a matter of law, beginning September 28, 2023, claims for Petitioner’s care and services delivered to Medicare-eligible could be filed with Medicare by Inland.

Petitioner argues that Inland should be able to bill Medicare for care and services Petitioner began delivering at Inland on August 1, 2022.  RFH at 1; P. Br. at 1; CMS Ex. 1 at 7.  Petitioner asserts, and I accept as true for purposes of summary judgment, that Petitioner filed applications on April 26, 2022, to reassign her Medicare claims to Inland and two other groups owned by the same company.  Her April 26, 2022 reassignment application for the other two groups were processed without issue.  The gist of Petitioner’s argument is that the MAC was aware of all the accurate information it needed to process to completion all her reassignment applications.  RFH at 1-2; P. Br. at 2, 3-5; CMS Ex. 1 at 7.  Petitioner also complains, and I accept as true for purposes of summary judgment, that MAC notices regarding defects in the rejected applications were not properly addressed.  P. Br. at 2.  Even though I accept Petitioner’s assertions as true for purposes of summary judgment and draw all favorable inferences for her, those assertions provide no basis for relief.  The MAC’s authority to reject a Medicare enrollment application is found in 42 C.F.R. § 424.525.  Pursuant to 42 C.F.R. § 424.525(d), the rejection of an application is not subject to appeal.  Therefore, the MAC’s rejection of Petitioner’s reassignment applications filed October 3, 2023, January 12, 2023, and April 26, 2022 (CMS Ex. 1 at 61, 89, 131) are not decisions of the MAC subject to my review as a matter of law.

Petitioner argues that she provided care under the “reasonable assumption that her application was in good standing.”  P. Br. at 4-5.  Petitioner also argues the MAC unreasonably prolonged her enrollment for over six months because it could have processed her reassignment application based on the MAC’s knowledge of information in the other reassignment applications of Petitioner that it approved.  P. Br. at 5.  Petitioner’s arguments can be construed to be that the government is estopped from treating October 28, 2023, as the effective date of Petitioner’s reassignment of her Medicare claims and billing privileges.  But as a matter of law, estoppel against the federal government, if available at all, is presumably unavailable absent “affirmative

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misconduct,” such as fraud.  See, e.g., Pac. Islander Council of Leaders, DAB No. 2091 at 12 (2007); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990).  There is no evidence suggesting fraud on the part of the MAC or CMS.  Furthermore, Petitioner concedes that the MAC did send notices regarding defects in the rejected applications to Inland’s staff, even though Petitioner was not made aware of those notices.  P. Br. at 2.  There is no dispute Inland’s staff was processing Petitioner’s reassignment to Inland.  There is no dispute the MAC notified Inland’s staff of corrective actions required to process each of Petitioner’s reassignment applications.  Therefore, Petitioner’s detrimental reliance was not detrimental reliance upon acts of the MAC but, rather, failures of Inland’s staff.

Petitioner asserts and I accept as true on summary judgment that due to the MAC’s rejections and initial determination there were $50,090.61 of unreimbursed claims for the period September 7, 2022 through October 26, 2023.  RFH at 2.  Petitioner argues that strict compliance with the regulations is unjust, unfair, and could create a chilling effect on providers and suppliers serving Medicare beneficiaries.  P. Br. at 4-5.  Even though I accept these assertions as true on summary judgment, I have no authority to grant Petitioner any equitable relief.  US Ultrasound, DAB No. 2302 at 8 (2010).  I am bound to follow the Act and regulations, and I have no authority to declare statutes or regulations invalid or ultra vires.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (noting that “[a]n ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground”).

III.  Conclusion

For the foregoing reasons, the effective date of Petitioner’s reassignment of billing privileges was October 28, 2023, with retrospective billing permitted beginning on September 28, 2023.