ABC Medical PC, DAB CR6646 (2025)

DECISION

March 27, 2024, is the effective date of reactivation of the Medicare enrollment and billing privileges of Petitioner, ABC Medical PC.

I.  Background and Findings of Fact

Petitioner has been enrolled in Medicare since at least February 11, 1998.  Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 1 at 12, 70; Petitioner's Brief (P. Br.); Request for Hearing (RFH).

On November 9, 2023, National Government Services, a Medicare administrative contractor (MAC), notified Petitioner by letter that Petitioner's billing privileges were deactivated effective November 8, 2023.  The MAC advised Petitioner that the deactivation was pursuant to 42 C.F.R. § 424.540(a)(3)1 due to Petitioner's failure to timely revalidate its enrollment record.  CMS Ex. 1 at 27-29.

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On November 16, 2023, Petitioner filed a Medicare enrollment application to revalidate its Medicare enrollment information and to reactivate its billing privileges.  CMS Ex. 1 at 31-41.  CMS sent Petitioner notices by email on November 29 and December 4, 2023, advising Petitioner that its application required corrections.  CMS Ex. 1 at 42-45.  Petitioner asserts and I accept as true for purposes of summary judgment that Petitioner did not receive the November 29 or December 4, 2023 notices.  P. Br.; RFH.  On January 3, 2024, the MAC notified Petitioner by letter that Petitioner's November 16, 2023 Medicare application was rejected because needed corrections were not timely made.  CMS Ex. 1 at 47-48.

On January 23, 2024, Petitioner filed its second Medicare enrollment application to verify its Medicare enrollment information and reactivate its Medicare billing privileges.  CMS Ex. 1 at 49-54.  CMS notified Petitioner by email on February 6 and 15, 2024, that its second application required corrections.  CMS Ex. 1 at 55-58.  Petitioner asserts and I accept as true for purposes of summary judgment that Petitioner did not receive the November 28 or December 4, 2023 notices.  P. Br.; RFH.  On March 20, 2024, the MAC notified Petitioner that its January 23, 2024 application was rejected because Petitioner failed to timely make requested corrections.  CMS Ex. 1 at 60-61.

On March 27, 2024, the MAC received Petitioner's third application to revalidate its Medicare enrollment information and to reactivate its billing privileges.  CMS Ex. 1 at 62-69.

On May 2, 2024, the MAC notified Petitioner by letter that it approved Petitioner's March 27, 2024 enrollment application and reactivated Petitioner's billing privileges effective March 27, 2024.  The MAC's letter may be confusing because it lists an effective date of February 11, 1998 for Petitioner's Provider Transaction Access Number

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(PTAN).  The letter states that there was a gap in Petitioner's Medicare billing privileges from November 8, 2023 through March 26, 2024, due to the deactivation of Petitioner's billing privileges.  CMS Ex. 1 at 12, 70.  The MAC hearing officer explained in the reconsidered determination, that under CMS policy, Petitioner retained the original effective date of its PTAN, but the MAC declared a gap in billing privileges for the period from deactivation to reactivation when Petitioner's billing privileges were deactivated, and Petitioner was ineligible to receive reimbursement from Medicare for care and services delivered during the gap period.  CMS Ex. 1 at 5.  The initial determination and the MAC hearing officer's interpretation shows that Petitioner's Medicare enrollment and billing privileges were not revoked but, rather, suspended during the period of the deactivation.  Petitioner has not disputed the MAC hearing officer's interpretation and application of the CMS policy.  P. Br.; RFH.

Petitioner requested reconsideration of the MAC's initial determination by letter dated May 16, 2024.  Petitioner requested elimination of the gap in its billing privileges from November 8, 2023 through March 26, 2024.  Petitioner asserted that its first three Medicare enrollment applications were processed incorrectly by "Medicare Provider Enrol[l]ment representatives."  CMS Ex. 1 at 11.  I accept Petitioner's assertion as true for purposes of summary judgment.

On August 14, 2024, the MAC hearing officer issued a reconsidered determination upholding the initial determination that Petitioner's billing privileges were reactivated March 27, 2024, with a gap in Petitioner's billing privileges due to deactivation beginning on November 8, 2023 and ending on March 26, 2024.  CMS Ex. 1 at 2-8.

On October 1, 2024, Petitioner filed a request for hearing before an administrative law judge (ALJ).  The case was assigned to me on October 3, 2024, and my Standing Order was issued.

On October 30, 2024, CMS filed its combined prehearing brief and motion for summary judgment (CMS Br.) with CMS Exs. 1 through 24.  On November 13, 2024, Petitioner filed its opposition to CMS' motion for summary judgment with no exhibits.  Petitioner has not objected to my consideration of CMS Exs. 1 through 24 and they are admitted as evidence, even though most of the exhibits are cumulative of evidence admitted as CMS Ex. 1.  On November 18, 2024, CMS waived the right to file a reply brief.

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II.  Issues, Conclusions of Law, and Analysis

A.  Issues

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

The effective date of reactivation of Petitioner's billing privileges.

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. Summary judgment is appropriate.

Petitioner is 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 Departmental Appeals Board (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 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).  A test for whether an issue of fact is genuinely in dispute is whether "the evidence [as to that issue] is such that a reasonable jury could return a verdict for the nonmoving party."  477 U.S. at 248.  In evaluating whether there is a genuine issue as to a material fact, an ALJ must view the facts and the inferences to be drawn from the facts in the light most favorable to the nonmoving party, which I have done.  See Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3rd Cir. 1986).

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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 Petitioner's billing privileges.  CMS is entitled to judgment as a matter of law and summary judgment is appropriate.

2. Petitioner has no right to ALJ review of the determination of the MAC to deactivate its billing privileges.  42 C.F.R. § 424.546(f).
3. Petitioner has no right to ALJ review of the rejection of its Medicare enrollment applications.  42 C.F.R. § 424.525(d).
4. There is authority for ALJ review in this case, but it is limited to the effective date of reactivation of Petitioner's Medicare enrollment and billing privileges, i.e., the date of reactivation of Petitioner's right to submit claims to and receive payment from Medicare for care and services delivered to Medicare-eligible beneficiaries.
5. March 27, 2024, is the effective date of reactivation of Petitioner'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).

This case involves a gap in Petitioner's billing privileges from November 8, 2023 through March 26, 2024, the day before the day the MAC received Petitioner's Medicare enrollment application it processed to approval.  Petitioner's 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 Petitioner was enrolled in Medicare during the gap period.  For purposes of this decision, it is important to understand that there is a difference between deactivation of Medicare enrollment and billing privileges and revocation of Medicare enrollment and billing privileges.  Petitioner's billing privileges were deactivated or suspended rather than being revoked.

There is no dispute Petitioner's Medicare enrollment and related billing privileges were deactivated effective November 8, 2023.  In its request for a reconsidered determination, Petitioner requested that the gap period be eliminated.  Petitioner argued that it has been compliant for 26 years and that it attempted to revalidate four times but was unsuccessful three times due to Medicare representatives not processing the applications correctly.  Petitioner argues it continued to provide services during the gap period that should be reimbursed by Medicare.  CMS Ex. 1 at 11.  Before me, Petitioner asserts that it never received the notices from the MAC or CMS that its applications that were rejected required corrections.  Petitioner asserts it would have responded to notices of required corrections because it has a long history of Medicare enrollment and payment by

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Medicare is important to Petitioner and its ability to serve its patients.  Petitioner asks that the gap period be deleted and that it be permitted to resubmit all claims.  P. Br.; RFH.

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)(3), Medicare billing privileges may be deactivated if a provider or supplier fails to revalidate its enrollment information within 90 calendar days from receipt of a notice from CMS to revalidate.  In this case, the November 9, 2023 notice of deactivation cited 42 C.F.R. § 424.540(a)(3) as the basis for deactivation because Petitioner failed to timely revalidate its Medicare enrollment information.  CMS Ex. 1 at 27.  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).

There is no dispute that the MAC deactivated Petitioner's billing privileges effective November 8, 2023.  The deactivation occurred pursuant to 42 C.F.R. § 424.540(a)(3) because Petitioner failed to timely revalidate its Medicare enrollment information.  CMS Ex. 1 at 27; P. Br.; RFH.  The deactivation determination is not subject to appeal or my review.  42 C.F.R. § 424.546(f).  Therefore, any alleged defects in the process followed by the MAC in deactivating Petitioner's Medicare enrollment and billing privileges are not subject to my review and are immaterial to this decision.

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

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reconsidered determination.  42 C.F.R. § 498.5(l)(1)-(2); Neb Grp. of Ariz. LLC, DAB No. 2573 at 7.

Billing privileges may be reactivated in accordance with 42 C.F.R. § 424.540(b).  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. § 424.540(b)(1).  CMS may for any reason require a deactivated provider or supplier to submit a complete Medicare enrollment application (CMS-855) to reactivate billing privileges.  42 C.F.R. § 424.540(b)(2).  The regulation clearly gives CMS and the MAC discretion to accept a certification and partial application with missing information provided or require that Petitioner submit a complete Medicare enrollment application.

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.  Therefore, 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 March 27, 2024, the date the MAC received the application it processed to approval.  The regulations grant no discretion to the MAC, CMS, or me to select a different reactivation effective date.

Petitioner's argument it did not receive the CMS notices that its November 16, 2023 and January 23, 2024 applications required corrections, is accepted as true for purposes of summary judgment.  But the MAC's authority to reject a Medicare enrollment application is found in 42 C.F.R. § 424.525 and pursuant to 42 C.F.R. § 424.525(d), the rejection of an application is not subject to appeal or my review.  Therefore, the MAC's decisions rejecting Petitioner's revalidation applications are not subject to my review as a matter of law.

Petitioner's arguments can be construed to be that the government is estopped from treating March 27, 2024, as Petitioner's reactivation effective date.  But as a matter of law, estoppel against the federal government, if available at all, is presumably unavailable absent "affirmative 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 or affirmative misconduct on the part of the MAC or CMS.  Petitioner's assertions that its applications were rejected due to errors of CMS or MAC staff are not allegations of fraud or affirmative misconduct.  P. Br.; RFH.  Petitioner does not dispute that when its billing privileges were deactivated and each time an application was rejected it did receive notice from the MAC.  Ultimately, Petitioner's Medicare application to revalidate its enrollment and to reactivate its billing privileges was accepted "thanks to the guidance of a particularly clear and helpful Medicare representative, that [Petitioner's] revalidation was successfully processed."  RFH.  I find no allegation that any MAC or CMS representative

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acted fraudulently or engaged in any affirmative misconduct that Petitioner acted in detrimental reliance upon.  I conclude that estoppel is not an issue.

Petitioner's argument it was unable to bill Medicare during the gap period (P. Br.; RFH) may also be viewed as a request 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 Petitioner's billing privileges is March 27, 2024.