Spine & Sports Medicine of Hamilton, LLC , DAB CR6642 (2025)

DECISION

The effective date of the reactivated billing privileges of Petitioner, Spine & Sports Medicine of Hamilton, LLC, is September 16, 2024. 

I. Background and Procedural History

Petitioner is enrolled as a clinic/group practice in the Medicare program.  See Centers for Medicare & Medicaid Services (CMS) Ex. 1 at 2. 

In correspondence dated April 30, 2024, Novitas Solutions (Novitas), a Medicare administrative contractor, directed Petitioner to revalidate its Medicare enrollment record no later than July 31, 2024.  CMS Ex. 7 at 1.  Novitas addressed its correspondence to Petitioner at a mailing address on Cabot Drive in Hamilton, NJ.  CMS Ex. 7 at 1; see CMS Exs. 1 at 2-3 (enrollment record listing the Cabot Drive address as both a correspondence and practice location address); 3 at 24, 34 (enrollment application listing the Cabot Drive address as both a correspondence and practice location address).  Novitas cautioned that it may stop Petitioner’s billing privileges if it did not receive the requested information by July 31, 2024.  

Page 2

On August 9, 2024, Novitas sent a letter to Petitioner at its Cabot Drive address informing Petitioner that it was “placing a stay on [Petitioner’s] Medicare enrollment record” effective August 8, 2024, based on its failure to comply with the request that it revalidate its enrollment record by July 31, 2024.  CMS Ex. 8 at 1.  Novitas explained that “claims for services and items [Petitioner furnished] during this period will be rejected” during the period of the stay.  CMS Ex. 8 at 1. 

On September 9, 2024, Novitas sent a letter to Petitioner at its Cabot Drive address in which it notified Petitioner that its billing privileges had been deactivated effective August 9, 2024, based on its failure to revalidate its enrollment record.  CMS Ex. 2 at 1.  Novitas instructed that Petitioner could reactivate its billing privileges by revalidating its Medicare enrollment record.  CMS Ex. 2 at 2.  

On September 16, 2024, Novitas received Petitioner’s Form CMS-855B application to revalidate its enrollment record.  CMS Ex. 3 at 114; see CMS Ex. 4 at 1.  Petitioner designated an individual, Ms. Cummins, at an address in Ione, CA, as the contact person for its September 2024 enrollment application.  CMS Ex. 3 at 68.  On September 27, 2024, Novitas notified Ms. Cummins that a site visit would be conducted (CMS Ex. 6 at 1), and an October 2, 2024 site visit verified Petitioner’s operational status.  CMS Ex. 10.  

Novitas, on October 15, 2024, notified Ms. Cummins that it had approved Petitioner’s revalidation application.  CMS Ex. 4 at 1.  Novitas explained that Petitioner “will have a gap in billing privileges from August 9, 2024 through September 15, 2024 for failing to fully revalidate during a previous revalidation cycle.”  CMS Ex. 4 at 1 (capitalization omitted). 

Petitioner’s authorized official, Dr. Alfieri, submitted a request for reconsideration that was received on November 7, 2024.  CMS Ex. 5 at 29; see CMS Ex. 9 at 1.  Petitioner claimed it did not receive the April and August 2024 letters that directed it to revalidate its Medicare enrollment record.  CMS Ex. 5 at 7-8. 

In a reconsidered determination dated November 21, 2024, Novitas informed Petitioner the effective date of the reactivation of its billing privileges would remain September 16, 2024.  CMS Ex. 9 at 4.  Novitas explained the following, in pertinent part: 

• Per 42 C.F.R. § 424.520(d), the effective date of billing privileges is the later of (1) the date of a filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or (2) the date that the supplier first began furnishing services at a new practice location.  However, per 42 C.F.R. § 424.540(d)(2), the effective date of a reactivation of billing privileges under this section is the date on which the contractor
  received the provider’s or supplier’s reactivation submission that the 

Page 3

• contractor processed to approval.  Therefore, the September 16, 2024 reactivation effective date was established correctly as this is the date Novitas Solutions received the reactivation application for Spine & Sports Medicine of Hamilton LLC. 

CMS Ex. 9 at 4. 

Petitioner filed a request for hearing on November 26, 2024.  The Civil Remedies Division issued my standing pre-hearing order (Pre-Hearing Order) on November 29, 2024.  CMS filed a motion for summary judgment and pre-hearing brief (CMS Br.), along with 10 proposed exhibits (CMS Exs. 1-10).  After the filing of CMS’s pre-hearing exchange, Petitioner provided notice that it rested on its request for hearing.  In the absence of any objections, I admit CMS Exs. 1-10 into the evidentiary record.  I consider the record in this case to be closed, and the matter is ready for a decision on the merits.1  

II. Issue

Whether the effective date of Petitioner’s reactivated Medicare billing privileges is September 16, 2024.  

III. Jurisdiction

I have jurisdiction to hear and decide this case.  42 C.F.R § 498.3(b)(15); Victor Alvarez, M.D., DAB No. 2325 at 8-12 (2010); see also 42 U.S.C. § 1395cc(j)(8). 

IV. Findings of Fact, Conclusions of Law, and Analysis2

1. 1. In correspondence dated April 30, 2024, Novitas directed Petitioner to revalidate its Medicare enrollment record no later than July 31, 2024, at which time it explained that Petitioner’s billing privileges would be stopped if it did not comply with the revalidation request.
2. 2. After more than 90 days had elapsed and Petitioner had not complied with the request that it revalidate its enrollment record by the July 31, 2024 deadline, Novitas informed Petitioner on August 9, 2024, that it had placed a stay on its billing privileges.
3. 3. On September 9, 2024, after Petitioner still had not complied with the request that it update its enrollment record, Novitas deactivated Petitioner’s Medicare billing privileges, effective August 9, 2024, pursuant to 42 C.F.R. § 424.540(a)(2).
4. 4. Pursuant to 42 C.F.R. §§ 424.545(b) and 498.3(b), the deactivation of billing privileges is not an “initial determination” that is subject to review.
5. 5. On September 16, 2024, Novitas received Petitioner’s Form CMS‑855B application and enclosures to reactivate its deactivated billing privileges.
6. 6. Novitas approved Petitioner’s reactivated billing privileges, effective September 16, 2024, the date it received Petitioner’s revalidation enrollment application.
7. 7. Pursuant to 42 C.F.R. § 424.520(d)(1)(i), the effective date of Petitioner’s reactivated billing privileges is September 16, 2024, which is the date of receipt of the Medicare enrollment application that Novitas was able to process to approval.
8. 8. Pursuant to 42 C.F.R. § 424.540(e), a supplier may not receive payment for services or items furnished while deactivated, and therefore, an effective date of billing privileges earlier than September 16, 2024, is not authorized.

Page 5

As a clinic/group practice, Petitioner is a “supplier” for purposes of the Medicare program.  See CMS Ex. 1 at 2; see also 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202 (definition of supplier); 498.2.  A “supplier” furnishes items or services under Medicare.  42 U.S.C. § 1395x(d).  A supplier must enroll in the Medicare program to receive payment for covered Medicare items or services.  42 C.F.R. § 424.505.  The regulations at 42 C.F.R. Part 424, subpart P, establish the requirements for a supplier to enroll in the Medicare program.  42 C.F.R. §§ 424.510-424.516; see also 42 U.S.C. § 1395cc(j)(1)(A) (authorizing the Secretary of the U.S. Department of Health and Human Services to establish regulations addressing the enrollment of providers and suppliers in the Medicare program).  A supplier that seeks billing privileges under Medicare “must submit enrollment information on the applicable enrollment application.”  42 C.F.R. § 424.510(a)(1).  “Once the provider or supplier successfully completes the enrollment process . . . CMS enrolls the provider or supplier into the Medicare program.”  Id.; see also 42 C.F.R. § 424.510(d) (listing enrollment requirements).  Thereafter, “[t]o maintain Medicare billing privileges, a . . . supplier . . . must resubmit and recertify the accuracy of its enrollment information every 5 years.”  42 C.F.R. § 424.515.  Further, a supplier “may be required to revalidate [its] enrollment outside the routine 5-year revalidation cycle . . . .”  42 C.F.R. § 424.515(e).  When the contractor approves an enrollment application, it sets the effective date for approval of billing privileges.  See Alexander C. Gatzimos, MD, JD, LLC, DAB No. 2730 at 2 (2016).  “The effective date of a physician’s or physician organization’s enrollment in Medicare is ‘the later of the date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor or the date [the supplier] first began furnishing services at a new practice location.’”  Id. at 2-3 (citing 42 C.F.R. § 424.520(d) (Oct. 1, 2012)).3  

CMS is authorized to deactivate an enrolled supplier’s Medicare billing privileges if the enrollee does not provide complete and accurate information within 90 days “of receipt of notification.”  42 C.F.R. § 424.540(a)(3).  If CMS deactivates a supplier’s Medicare billing privileges, “[n]o payment may be made for otherwise Medicare covered items or services furnished to a Medicare beneficiary . . . .”  42 C.F.R. § 424.555(b); Urology Grp. of NJ, LLC, DAB No. 2860 at 10 (2018) (“The regulations, taken together, clearly establish that a deactivated provider or supplier was not intended to be entitled to Medicare reimbursement for services rendered during the period of deactivation.”).  Further, and quite significantly, the Departmental Appeals Board (DAB) has unambiguously stated that “[i]t is certainly true that [the petitioner] may not receive payment for claims for services during any period when his billing privileges were deactivated.”  Willie Goffney, Jr., M.D., DAB No. 2763 at 6 (2017), aff’d, Goffney v. 

Page 6

Azar, 2:17-CV-8032 (C.D. Cal. Sept. 25, 2019); see Urology Grp., DAB No. 2860 at 11 (“Taking these unique effects of revocation into consideration, it is reasonable to conclude that CMS intended for revocations and deactivations to share the feature of precluding a provider or supplier from collecting reimbursement for services rendered during the period of inactive Medicare billing privileges, while simultaneously intending for revocations to have more severe consequences on a provider’s or supplier’s ability to participate.”); Frederick Brodeur, M.D., DAB No. 2857 at 16 (2018) (“Allowing a deactivated supplier to bill for services furnished during a period of deactivation would conflict with section 424.555(b) of the regulations . . . .”). 

Novitas deactivated Petitioner’s billing privileges as a clinic/group practice effective August 9, 2024, after it did not timely revalidate its enrollment record by July 31, 2024, in response to both the April 30, 2024 revalidation request and a subsequent August 9, 2024 notice that its billing privileges had been stayed.  CMS Ex. 2; see CMS Exs. 7, 8.  Petitioner does not claim that it updated its enrollment record prior to the deactivation of its billing privileges.  Rather, Petitioner disputes the basis for the deactivation of its billing privileges (e.g., claiming that it did not receive the April and August 2024 notices).  Inasmuch as Petitioner’s request for hearing largely challenges the deactivation of its billing privileges, a deactivation of billing privileges is not an initial determination that is subject to review.4 See 42 C.F.R. §§ 498.3, 424.545(b); Frederick Brodeur, M.D., DAB No. 2857 at 12 (“A contractor’s deactivation decision is not an initial determination subject to ALJ or Board review.”).  

The pertinent regulation with respect to the effective date of reactivation is 42 C.F.R. § 424.520(d).  Urology Grp, DAB No. 2860 at 7 (“The governing authority to determine the effective date for reactivation of Petitioner’s Medicare billing privileges is 42 C.F.R. § 424.520(d).”) (italics omitted).  Section 424.520(d)(1) states that “[t]he effective date of billing privileges for the provider and supplier types identified in paragraph (d)(2) of this section is the later of – (i) The date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or (ii) The date that the provider or supplier first began furnishing services at a new practice location.”  The DAB has explained that the “date of filing” is the date “that an application, however sent to a contractor, is actually received.”  Gatzimos, DAB No. 2730 at 5 (emphasis omitted).  Novitas deactivated Petitioner’s billing privileges because it did not timely update its 

Page 7

enrollment record, and Petitioner did not submit an enrollment application that was processed to approval until September 16, 2024.  Based on the September 16, 2024 receipt date of the enrollment application, Novitas did not err in assigning a September 16, 2024 effective date for reactivated billing privileges.  42 C.F.R. § 424.520(d); see Urology Grp., DAB No. 2860 at 9 (“Moreover, the fact that a supplier must file a new enrollment application in order to reactivate its billing privileges is consistent with the language of section 424.520(d) and compelling evidence that the provision should apply to reactivations.”); Goffney, DAB No. 2763 at 6 (“It is certainly true that [the petitioner] may not receive payment for claims for services during any period when his billing privileges were deactivated.”); Brodeur, DAB No. 2857 at 16 (“Petitioner remained enrolled in Medicare, but his deactivated status made [him] ineligible for payment for any covered services he furnished to otherwise eligible Medicare beneficiaries, pursuant to section 424.555(b), until he provided the information necessary to reactivate his billing privileges.”).  Further, and pursuant to 42 C.F.R. § 424.540(e), “[a] provider or supplier may not receive payment for services or items furnished while deactivated under this section.”  See, e.g., Michael B. Zafrani, M.D., DAB No. 3075 at 15 n.1 (2022) (“[E]ffective January 1, 2022, CMS adopted . . . 42 C.F.R. § 424.540(e), which . . . prohibit[s] retrospective billing privileges during a period of deactivation.  See 86 Fed. Reg. [62,240,] 62,420-21 [(Nov. 9, 2021)].”). 

I acknowledge Petitioner’s claims that it did not receive the revalidation notices.  CMS need not prove Petitioner’s actual mail receipt of the revalidation request and notice that its billing privileges had been stayed because it is presumed that CMS’s Medicare administrative contractor personnel have performed their ministerial duties.  See, e.g., Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004) (holding, in a case involving the mailing of a decision to a claimant for benefits, that the presumption of regularity “provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties”); U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001) (discussing that the presumption of regularity attaches to actions of government agencies); United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926) (creating presumption that government officials and agents have properly discharged duties in the absence of “clear evidence to the contrary”); Brian K. Ellefsen, DO, DAB No. 2626 at 7 (2015) (DAB’s discussion that the presumption of regularity applies to the actions of CMS and its Medicare administrative contractors).  Regardless, I reiterate that I may not review the deactivation of billing privileges.  See 42 C.F.R. §§ 498.3, 424.545(b). 

Petitioner does not claim that it revalidated its Medicare enrollment prior to September 16, 2024.  In the absence of evidence of an earlier submission of an enrollment application that was processed to approval, I cannot grant an earlier date of reactivated billing privileges.  42 C.F.R. § 424.520(d)(1)(i); see 42 C.F.R. § 424.540(e).  To the extent that Petitioner’s request for relief is based on principles of equitable relief, I cannot grant such relief.  US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the 

Page 8

[DAB] is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).  Petitioner points to no authority by which I may grant it relief from the applicable regulatory requirements, 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) (“An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground . . . .”).  Novitas did not receive the reactivation enrollment application that it processed to approval until September 16, 2024; therefore, the pertinent regulation, 42 C.F.R. § 424.520(d)(1)(i), mandates that the effective date of Petitioner’s reactivated billing privileges is September 16, 2024. 

V. Conclusion

For the foregoing reasons, I uphold the September 16, 2024 effective date of Petitioner’s reactivated Medicare billing privileges.