Kevin Creelman, MD, and North Pacific Medical Center, Inc., PC, DAB CR6634 (2025)

DECISION

The effective date of reactivation of Petitioner North Pacific Medical Center, Inc., PC’s (North Pacific) Medicare billing privileges is November 1, 2023, and that is also the effective date of Petitioner Kevin Creelman, MD’s (Dr. Creelman) reassignment of his right to file claims with and receive payment from Medicare to North Pacific. 

I. Background and Findings of Undisputed Facts

On January 17, 2023, Noridian Healthcare Solutions, a Medicare administrative contractor (MAC), informed North Pacific that it had 90 days to file a change of information to remove a deceased member of the group from North Pacific’s Medicare enrollment.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 194. 

On April 20, 2023, the MAC notified North Pacific that its Medicare billing privileges were deactivated effective April 18, 2023, pursuant to 42 C.F.R. § 424.540(a)(2) because North Pacific failed to file a change of information report to remove the deceased group member from its Medicare enrollment as its sole owner, managing employee, employee 

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with a five percent or greater ownership interest, and Petitioner’s authorized official.  CMS Ex. 1 at 191.  On May 16, 2023, the MAC notified North Pacific that its rebuttal of the deactivation action was rejected.  CMS Ex. 1 at 173. 

The MAC received multiple Medicare enrollment applications from North Pacific following the deactivation.  The various Medicare enrollment applications filed for North Pacific after the deactivation list Dr. Creelman as Northern Pacific’s sole owner effective December 21, 2022.  The applications or parts and sections of applications in evidence are signed on April 25, 2023, May 18, 2023, June 7, 2023, July 12, 2023, August 4, 2023, October 24, 2023, and December 4, 2023 by Dr. Creelman as Petitioner’s owner.  CMS Ex. 1 at 13‑16, 39-50, 63-68, 87-96, 105-12, 125-32, 151-65, 171-72, 176-87.  There is also evidence that the MAC received applications on May 1, 2023, July 5, 2023, and November 1, 2023, listing Dr. Creelman as North Pacific’s new owner.  CMS Ex. 1 at 22-32, 70-80, 134-44.  The applications were all rejected except for the last application received by the MAC on November 1, 2023, which was corrected on December 6, 2023.  CMS Ex. 1 at 1-4, 9, 12-190. 

On December 28, 2023, the MAC notified North Pacific that its reactivation enrollment application was approved effective November 1, 2023.  The MAC also informed North Pacific that Dr. Creelman’s effective date of enrollment as an individual with the North Pacific group practice was November 1, 2023.  CMS Ex. 1 at 9.  

A reconsidered determination issued by a MAC hearing officer on April 16, 2024, shows that North Pacific requested reconsideration on January 17, 2024.  The hearing officer upheld the reactivation effective date of November 1, 2023.  CMS Ex. 1 at 1-8. 

On April 17, 2024, Dr. Creelman requested a hearing before an administrative law judge (ALJ) on behalf of North Pacific.  Dr. Creelman requested that North Pacific’s reactivation effective date be changed to April 30, 2023.  This request for hearing was docketed as C-24-394 and assigned to me to hear and decide. 

Dr. Creelman also filed a request for hearing on his own behalf, requesting a reactivation effective date of April 30, 2023.  This request for hearing was docketed as C-24-393 and assigned to me to hear and decide.  Dr. Creelman filed with his request for hearing an April 16, 2024 reconsidered determination by a MAC hearing officer and Dr. Creelman’s reconsideration request.  Departmental Appeals Board Electronic Filing System (DAB E-File) C-24-393 # 1_a-b.  The hearing officer explained that Dr. Creelman’s application to 

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enroll and reassign benefits1 to North Pacific was not received by the MAC until December 29, 2023, and his reassignment was granted with retrospective billing privileges beginning on November 29, 2023.  However, Dr. Creelman was the only group member in the North Pacific group and the group could not exist without a practitioner from November 1 to 29, 2023.  Therefore, the MAC decided to readjust Dr. Creelman’s retrospective billing date to November 1, 2023, to match North Pacific’s reactivation effective date.  DAB E-File C-24-393 # 1_a at 5-6 (document page counter).  Dr. Creelman did not challenge in his request for hearing the April 16, 2024 reconsidered determination of the MAC in his case except to request “a retro reactivation date of April 30, 2023.”  DAB E-File C‑24-393 # 1.  Except for referring to his individual NPI and provider transaction access number (PTAN) in the request for hearing in C-24-393 and the NPI and PTAN of North Pacific in C-24-394, the requests for hearing are identical and request the same relief, i.e., granting North Pacific a reactivation effective date of April 30, 2023, with Dr. Creelman’s reassignment to Northwest Pacific also effective that date.  Therefore, on April 22, 2024, I consolidated C-24-393 and C-24-394 and dismissed C-24-393 because the determination of the reactivation effect date of North Pacific resolves any issues related to the effective date of Dr. Creelman’s reassignment to North Pacific. 

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On May 31, 2024, CMS filed a motion for summary judgment and prehearing brief with CMS Ex. 1.  Petitioners did not object to my consideration of CMS Exhibit 1 and it is admitted as evidence.  On July 3, 2024, Petitioners filed a response with a letter from the MAC dated May 23, 2023 addressed to the deceased group member.  The letter advised that the Medicare enrollment application received on May 1, 2023 was closed because the information provided in that application was already on file.  The information contained in the letter is accepted as true for purposes of summary judgment, but the document is not admitted as evidence as it is not relevant.  On July 19, 2024, CMS filed a reply brief. 

II. Issues, Conclusions of Law, and Analysis

1. A. Issues
   1. Whether I have jurisdiction to review the reconsidered determination by CMS or a MAC of the effective date of reactivation of Medicare billing privileges, which are the right to file claims with and to receive payment from Medicare; and
   2. The effective date of reactivation of North Pacific’s billing privileges and Dr. Creelman’s reassignment to North Pacific.
2. B. Conclusions of Law and Analysis

My conclusions of law are set forth in bold text followed by my analysis applying the law to the undisputed facts. 

1. 1. Summary judgment is appropriate.

Petitioners are entitled to a hearing on the record before an ALJ under the Social Security Act (Act).  Act §§ 205(b); 1866(h)(1), (j); 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. Part 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. 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 ¶¶ D and G 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.  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 

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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 related to the effective date of the reactivation of North Pacific’s billing privileges or the effective date of Dr. Creelman’s reassignment to North Pacific.  CMS is entitled to judgment as a matter of law and summary judgment is appropriate. 

2. 2. Petitioners have no right to ALJ review of the determination of the MAC or CMS to deactivate North Pacific’s billing privileges.
3. 3. There is authority for ALJ review in this case, but it is limited to the effective date of reactivation of North Pacific’s billing privileges, i.e., the date of reactivation of North Pacific’s right to submit claims to and receive payment from Medicare for care and services delivered to Medicare-eligible beneficiaries.
4. 4. November 1, 2023, is the effective date of reactivation of North Pacific’s billing privileges as that was the date the MAC received the Medicare enrollment application that it could process to approval. 42 C.F.R. § 424.540(d)(2).
5. 5. November 1, 2023 is the effective date of Dr. Creelman’s reassignment to North Pacific.

This case involves a gap in Petitioners’ billing privileges that was created when the MAC deactivated North Pacific’s billing privileges, and then reactivated North Pacific’s billing privileges on a later date.  In most cases like this, the real grievance is that CMS and the MAC decline to pay for services rendered to Medicare-eligible beneficiaries during the gap period, even though there is no dispute that North Pacific was enrolled in Medicare during the gap period.  It is significant to recognize that North Pacific’s billing privileges were deactivated.  But North Pacific’s Medicare enrollment and billing privileges were not revoked.  For Dr. Creelman, it is important to know when he could reassign Medicare claims to North Pacific for filing with Medicare. 

The Secretary of the U.S. Department of Health & Human Services (the Secretary) promulgated regulations at 42 C.F.R. Part 424 that establish a process for enrolling providers and suppliers in Medicare.  Pursuant to the regulations, CMS or the MAC may deactivate the billing privileges of an enrolled provider or supplier for any of the eight reasons listed in 42 C.F.R. § 424.540(a).  Pursuant to 42 C.F.R. § 424.540(a)(2), Medicare billing privileges may be deactivated if a provider or supplier fails to report a 

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change in enrollment information within the time specified by the regulations.  Deactivation of billing privileges has no effect on a provider’s or supplier’s “participation agreement or any conditions of participation.”  42 C.F.R. § 424.540(c).  But a provider or supplier may receive no payment from Medicare for items or services provided to a Medicare-eligible beneficiary during the period of deactivation.  42 C.F.R. § 424.540(e). 

A provider or supplier has no right to appeal a CMS or MAC decision to deactivate its billing privileges.  42 C.F.R. § 424.546(f).  A provider’s or supplier’s only recourse when billing privileges are deactivated is to file a rebuttal with the MAC or CMS.  42 C.F.R. §§ 424.545(b), 424.546.  Petitioners’ rebuttal in this case was rejected by the MAC, and I have no authority to review the rejection. 

Billing privileges may be reactivated in accordance with 42 C.F.R. § 424.540(b).  CMS may require a deactivated provider or supplier to submit a complete Medicare enrollment application (CMS-855) to reactivate billing privileges.  42 C.F.R. § 424.545(b)(2).  The provider or supplier must recertify the accuracy of its enrollment information, submit any missing information, and certify it is in compliance with all applicable Medicare enrollment requirements.  42 C.F.R. § 424.545(b)(1). 

According to 42 C.F.R. § 424.540(d)(2), the effective date of reactivation of billing privileges is the date the MAC or CMS received the Medicare enrollment application that was processed to approval. 

The Secretary has not specifically stated that a provider or supplier has a right to ALJ review of CMS or MAC determinations related to the reactivation of billing privileges.  42 C.F.R. §§ 424.545, 498.3(b), 498.5.  However, 42 C.F.R. § 498.3(b)(15) provides that “[t]he effective date of a Medicare provider agreement or supplier approval” is an initial determination subject to review by an ALJ.  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 as well as the effective date of the reactivation of billing privileges.  See, e.g., Victor Alvarez, M.D., DAB No. 2325 at 3-12 (2010) (determination of effective date of enrollment in Medicare is an initial determination subject to ALJ review and Board appeal); Urology Grp. 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). 

Applying the reasoning of the Board in Alvarez and Urology, I conclude that a supplier has the right to ALJ review of the CMS or MAC determination of the effective date of reactivation of billing privileges.  Furthermore, the only determination of CMS or the MAC that is subject to my review in a provider or supplier enrollment case is the reconsidered determination.  42 C.F.R. § 498.5(l)(1)-(2); Neb Grp. of Ariz. LLC, DAB No. 2573 at 7. 

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Applying the regulations to the undisputed facts in this case is not complicated. 

• The MAC deactivated Petitioner’s billing privileges effective April 18, 2023.  The deactivation occurred because North Pacific failed to file a change of information report to remove the deceased group member from its Medicare enrollment as its sole owner, managing employee, employee with a five percent or greater ownership interest, and Petitioner’s authorized official.2  CMS Ex. 1 at 191.
• On November 1, 2023, Dr. Creelman filed a Medicare enrollment application to reactivate North Pacific’s Medicare billing privileges, and that application was processed to approval by the MAC.  CMS Ex. 1 at 5, 9, 12.
• By operation of 42 C.F.R. § 424.540(d)(2), the effective date of the reactivation of Petitioner’s Medicare billing privilege must be November 1, 2023, as the regulation grants no discretion to the MAC, CMS, or me to select a different reactivation effective date.
• Pursuant to 42 C.F.R. §§ 424.80(a) and (b), and 424.540(e), Dr. Creelman’s reassignment of his right to file claims with and receive payment from Medicare for care and services he rendered to a Medicare-eligible beneficiary could not occur before the reactivation of North Pacific’s billing privileges so that North Pacific could file claims with and receive payment from Medicare.  

Dr. Creelman argues that when he learned in January 2023 what was necessary to comply with Medicare requirements, there were multiple problems.  He asserts, and I accept as true for purposes of summary judgment, that there were problems using the CMS Provider Enrollment, Chain, and Ownership System (PECOS) because North Pacific’s prior retired and deceased owner and billers failed to provide PECOS access information.  Dr. Creelman assumed the prior owner removed himself from North Pacific’s enrollment when he retired.  Because Dr. Creelman and North Pacific could not access PECOS all documents had to be submitted to the MAC by mail.  He also learned there was a problem because North Pacific’s name in its Medicare enrollment record did not match the name on file with the Internal Revenue Service and the bank.  Dr. Creelman argues Medicare received an application on May 1, 2023, and that his staff worked tirelessly to correct that application to meet the MAC’s requirements.  Dr. Creelman requests that North Pacific’s reactivation effective date and the date of his reassignment to North Pacific be May 1, 2023.  P. Br. 

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Between the deactivation of North Pacific’s billing privileges and November 1, 2023, the date the MAC received the application it processed to approval, Dr. Creelman filed at least three applications with multiple corrections to reactivate North Pacific’s billing privileges.  All were rejected by the MAC, including the application received on May 1, 2023.  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 rejections of Petitioners’ applications and the reasons for those rejections are not subject to my review and not material to deciding this case.  Furthermore, 42 C.F.R. § 424.540(d)(2) is very specific that the effective date of reactivation of billing privileges is the date the MAC receives the application that it processed to approval.  The regulation grants the MAC, CMS, and me no discretion to select a different effective date. 

Petitioner’s arguments may also be viewed as requests for equitable relief.  I have no authority to grant 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, I conclude that the effective date of reactivation of North Pacific’s billing privileges is November 1, 2023, and that is also the effective date of Dr. Creelman’s reassignment to North Pacific.