Adam Garling, PA and Garling Medical PC, DAB CR6683 (2025)

DECISION

The effective date of Medicare enrollment and billing privileges of Petitioner, Garling Medical PC,1 and the reassignment benefits from Petitioner Adam Garling, PA to Petitioner Garling Medical PC, is April 2, 2024, with retrospective billing privileges beginning March 3, 2024. 

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I. Background and Undisputed Facts

The following facts are undisputed. 

On April 2, 2024, Noridian Healthcare Solutions, the Medicare administrative contractor (MAC), received a Medicare enrollment application for Garling Medical PC to enroll for the first time in Medicare and for billing privileges.  CMS Ex. 1 at 25. 

On April 18, 2024, the MAC notified Petitioners by email that the enrollment application for Garling Medical PC was received and was being processed.  However, Garling Medical PC could not be enrolled without one group member reassigning Medicare benefits to Garling Medical PC.  CMS Ex. 1 at 23-24. 

On April 25, 2024, the MAC received a Medicare enrollment application for Adam C. Garling, PA.  CMS Ex. 1 at 15.  

On May 10, 2024, the MAC notified Petitioners of its initial determination that the initial Medicare enrollment application was approved effective March 3, 2024, for both Adam Garling, PA as an individual and Garling Medical PC as the clinic/group practice.  CMS Ex. 1 at 12-14. 

Petitioners requested reconsideration by letter dated May 28, 2024.  Petitioners requested the effective date of Medicare enrollment and billing privileges be changed to October 1, 2023.  CMS Ex. 1 at 11. 

A MAC hearing officer issued a reconsidered determination on August 19, 2024.  The hearing officer upheld the initial determination that based on the application filed April 2, 2024, the earliest date for billing privileges for Petitioners was March 3, 2024.  CMS Ex. 1 at 6-9.  On November 14, 2024, the MAC hearing officer issued a reopened and revised reconsidered determination.  The hearing officer noted that the March 3, 2024 effective date granted in the initial determination was the first day of the period for retrospective billing authorized by 42 C.F.R. § 424.525(a).  The hearing officer discussed that Petitioners requested an effective date of October 1, 2023, as that was the date on which Petitioners represent that they began furnishing services.  But the hearing officer explained that because the Medicare enrollment application was filed on April 2, 2024, which is later than October 1, 2023, the date of filing was the earliest effective date possible under the regulations with retrospective billing of 30 days beginning March 3, 

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2024.  The hearing officer specified that the same effective date and date for retrospective billing applied to both Garling Medical PC and Adam Garling, PA.  CMS Ex. 1 at 1-3.2

On October 10, 2024, Petitioners filed a request for hearing (RFH) before an administrative law judge (ALJ).  The case was assigned to me on October 16, 2024, and my Standing Order was issued. 

CMS moved to dismiss the case on November 26, 2024.  The CMS motion was denied on December 19, 2024.  On January 13, 2025, CMS filed its prehearing brief and motion for summary judgment with CMS Exhibits 1 and 2.  Petitioners filed a brief in response on January 31, 2025 (P. Br.) with no exhibits.  CMS filed a reply brief on February 5, 2025 (CMS Reply).  Petitioners did not object to my consideration of CMS Exhibits 1 and 2, which are admitted as evidence.  Petitioners filed with their brief an email thread between Petitioners and counsel for CMS and a letter from the Chief Operating Officer and Clinic Manager for a hospital dated October 24, 2024.  CMS objects to my consideration of both documents.  CMS Reply.  Pursuant to 42 C.F.R. § 498.60(b)(1),3 I am to receive as evidence any evidence that is relevant and material to the issues before me.  Relevant evidence is any evidence that has a tendency to make a fact of consequence to an issue I may decide more or less probable than without the evidence.  Fed. R. Evid. 401.  The letter is not relevant to any issue that I may decide.  I accept as true for purposes of summary judgment that Petitioners provide a valuable service to the community, but that does not impact the determination of the effective date of enrollment and billing privileges or the effective date of the reassignment.  The email thread is considered to the extent it may be viewed as supporting an argument for equitable estoppel and that issue is 

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discussed at the end of this decision.  The email thread has no impact upon the determination of the effective date of enrollment or date for retrospective billing or the date of the reassignment of benefits as those dates are controlled by the regulations. 

I accept as true for purposes of summary judgment that Petitioner had its first Medicare-eligible patients on October 1, 2023; Petitioner provides a valuable service in the community; Petitioner Garling Medical PC’s viability is questionable without payment for Medicare claims for services to Medicare-eligible beneficiaries between October 1, 2023 and March 3, 2024.  P. Br.; RFH. 

II. Discussion

A. 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 eligible providers of services and suppliers.4 Act §§ 1835(a) (42 U.S.C. § 1395n(a)); 1842(h)(1) (42 U.S.C. § 1395u(h)(1)).  Administration of the Part B program is through the MACs.  Act § 1842(a) (42 U.S.C. § 1395u(a)).  

The Act requires the Secretary of Health and Human Services (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(j) (42 U.S.C. § 1395cc(j)). 

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Pursuant to 42 C.F.R. § 424.505, a provider or supplier must be enrolled in the Medicare program and be issued a billing number to have billing privileges and to 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 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 or nonphysician practitioner 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) and (5).  Pursuant to 42 C.F.R. § 424.522(a), a reassignment of benefits may be effective for as many as 30 days before the MAC received the reassignment application, if all applicable requirements were met.  86 Fed. Reg. 62,240, 62,419 (Nov. 9, 2021).  In this case, even though Petitioner Adam Garling, PA did not file his reassignment application until April 25, 2024, the MAC hearing officer found his reassignment was effective April 2, 2024, the effective date of enrollment of Petitioner Garling Medical PC.  CMS Ex. 1 at 2. 

The effective date of enrollment in Medicare of physicians, nonphysician practitioners, and physician and nonphysician practitioner organizations, such as Petitioners, is governed by 42 C.F.R. § 424.520(d).  The effective date of enrollment for physicians, nonphysician practitioners, or physician and nonphysician practice groups may only be the later of two dates:  (1) 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 (2) 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).  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. 69,725, 69,769 (Nov. 19, 2008); Alexander C. Gatzimos, MD, JD, LLC, DAB No. 2730 at 1 (2016).  The burden is on Petitioners, not the government, to demonstrate that the MAC or CMS received the requisite enrollment forms, and that Petitioners met all enrollment requirements.  42 C.F.R. § 424.545(c). 

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 cases of a Presidentially-declared disaster pursuant to 42 U.S.C. §§ 5121-5207.  42 C.F.R. § 424.521(a)(2).  

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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 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.  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. Appeal and review rights are specified by 42 C.F.R. § 498.5. 

B. Issues

Whether Petitioner Garling Medical PC’s effective date for Medicare enrollment is April 2, 2024, with retrospective billing privileges beginning March 3, 2024. 

Whether the reassignment of benefits by Petitioner Adam Garling, PA to Petitioner Garling Medical PC was April 2, 2024. 

C. Findings of Fact, Conclusions of Law and Analysis

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

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1. Summary judgment is appropriate.

The material facts, including the date the MAC received the enrollment application it processed to approval, are undisputed.  The issues raised by Petitioners are issues of law that must be resolved against Petitioners.  Based on the undisputed facts, CMS is entitled to judgment as a matter of law, and summary judgment is appropriate. 

Petitioners are 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. 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 Prehearing Order that summary judgment is an available procedural device and that the law as it has developed under 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). 

In determining whether there are genuine issues of material fact for trial, the reviewer must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party’s favor.  The party requesting summary judgment bears the burden of showing that there are no genuine issues of material fact for trial and/or that it is entitled to judgment as a matter of law.  Generally, the non-movant may not defeat an adequately supported summary judgment motion by relying upon the denials in its pleadings or briefs but must furnish evidence of a dispute concerning a material fact, i.e., a fact that would affect the outcome of the case if proven.  See Anderson, 477 U.S. at 248; Mission Hosp. Reg’l Med. Ctr., DAB No. 2459 at 5; Experts Are Us, Inc., DAB No. 2452 at 5; Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 3. 

The standard for deciding a case on summary judgment and an ALJ’s decision-making in deciding a summary judgment motion differs from that used in resolving a case after a hearing.  On summary judgment, the ALJ does not make credibility determinations, weigh the evidence, or decide which inferences to draw from the evidence, as would be done when finding facts after a hearing on the record.  Rather, on summary judgment, the 

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ALJ construes the evidence in a light most favorable to the non-movant and avoids deciding which version of the facts is more likely true.  Holy Cross Vill. at Notre Dame, Inc., DAB No. 2291 at 5 (2009).  The Board also has recognized that on summary judgment it is appropriate for the ALJ to consider whether a rational trier of fact could find that the party’s evidence would be sufficient to meet that party’s evidentiary burden.  Dumas Nursing & Rehab., L.P., DAB No. 2347 at 5 (2010).  The Secretary has not provided in 42 C.F.R. pt. 498 for the allocation of the burden of persuasion or the quantum of evidence required to satisfy the burden.  However, the Board has provided some persuasive analysis regarding the allocation of the burden of persuasion in cases subject to 42 C.F.R. pt. 498.  Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005). 

I conclude that Petitioners have failed to show that there is a genuine dispute as to any fact material to determination of the correct effective date of Petitioner Garling Medical, PC’s Medicare enrollment and billing privileges and the reassignment Medicare benefits from Petitioner Adam Garling, PA.  The determinations of the correct effective date and the beginning of the period for retrospective billing are based on application of the regulations to the undisputed facts.  CMS is entitled to judgment as a matter of law.  Accordingly, I conclude that summary judgment is appropriate. 

2. Pursuant to 42 C.F.R. § 424.520(d), the effective date of Medicare enrollment of Petitioner Garling Medical PC is April 2, 2024, the date of receipt by the MAC of a Medicare enrollment application that the MAC processed to approval.

3. Pursuant to 42 C.F.R. § 424.521(a)(1), Petitioners are authorized to bill Medicare for services provided to Medicare-eligible beneficiaries up to 30 days prior to the effective date of enrollment, that is, beginning on March 3, 2024.

4. Pursuant to 42 C.F.R. § 424.522(a), Petitioner Adam Garling, PA reassigned benefits to Petitioner Garling Medical PC, effective April 2, 2024, the effective date of Medicare enrollment of the latter.

The regulations controlling the effective date of enrollment of physicians, nonphysician practitioners, and physician or nonphysician practice groups are clear and controlling.  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).  The effective date of enrollment and billing privileges for a physician or nonphysician practitioner or a physician or nonphysician practice group may only be the later of two dates:  (1) the date when the physician, nonphysician practitioner, or group filed an application for enrollment that was subsequently approved by a MAC charged 

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with reviewing the application on behalf of CMS; or (2) the date when the physician first began providing services at a new practice location.  42 C.F.R. § 424.520(d). 

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. 69,725, 69,769 (Nov. 19, 2008); Alexander C. Gatzimos, MD, JD, LLC, DAB No. 2730 at 1.  The burden is on Petitioners, not the government, to demonstrate that the MAC or CMS received the requisite enrollment forms, and that Petitioners met all enrollment requirements.  42 C.F.R. § 424.545(c). 

In the absence of a Presidentially-declared disaster, an enrolled physician or nonphysician practitioner 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.  42 C.F.R. § 424.521(a)(1).  

Applying the law to the undisputed facts is not complicated.  On April 2, 2024, the MAC received the Medicare enrollment application of Petitioner Garling Medical PC.  CMS Ex. 1 at 25.  Petitioner Garling Medical PC began providing services on October 1, 2023.  But April 2, 2024, is later than October 1, 2023.  Therefore, 42 C.F.R. § 424.520(d)(1) dictates that the effective date of Medicare enrollment and billing privileges for Petitioner Garling Medical PC is April 2, 2024.  There is no evidence of a Presidentially-declared disaster between October 1, 2023 and April 2, 2024.  Therefore, 42 C.F.R. § 424.521(a)(1) only authorizes retrospective billing for 30 days prior to April 2, 2024, which was March 3, 2024.  Finally, Adam Garling, PA could reassign his right to file claims for services provided to Medicare-eligible beneficiaries to Garling Medical PC no earlier than April 2, 2024, when Garling Medical PC was first enrolled.  42 C.F.R. § 424.522(a). 

Petitioners do not dispute that the MAC correctly applied the regulations and determined the effective date of Medicare enrollment and billing privileges, the first date for retrospective billing or the date of the reassignment.  Rather, Petitioners request what Petitioners characterized as a “hardship exception” granting it the ability to bill for services provided to Medicare-eligible beneficiaries between October 1, 2023 and March 3, 2024.  RFH at 1; P. Br. at 1.  But I have no authority to grant Petitioners equitable relief in the form of an earlier effective date of enrollment, even if I were inclined to do so.  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). 

Petitioners attached to their brief an email discussion with counsel for CMS.  P. Br. at 2.  Petitioners represent in their brief and indicate in the email thread that Petitioners understand that the MACs typically grant billing privileges for six months prior to 

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enrollment.  Petitioners cite credentialing agents, an attorney, and Petitioners’ research.  Counsel for CMS does not agree with that assertion in the email.  And Petitioners point to no CMS or MAC official or employee who made such a representation.  To the extent Petitioners’ argument may be construed to be an argument that CMS should be estopped from denying billing privileges as early as October 1, 2023, the argument must be rejected.  Estoppel against the federal government, if available at all, is presumably unavailable absent “affirmative misconduct,” such as fraud, and there is no evidence that any CMS or MAC official misled Petitioners in any respect.  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). 

III. Conclusion

For the foregoing reasons, the effective date of enrollment and billing privileges of Petitioner Garling Medical PC is April 2, 2024, with retrospective billing privileges beginning March 3, 2024.  Petitioner Adam Garling, PA reassigned his benefits to Petitioner Garling Medical PC effective April 2, 2024.