Michael Shehata Hana, MD and Karas, PLLC, DAB CR6684 (2025)

DECISION

The effective date of Medicare enrollment and billing privileges of Petitioner Karas, PLLC (Petitioner Karas),1 and the reassignment of benefits from Petitioner Michael Shehata Hana, MD (Petitioner Hana) to Petitioner Karas is March 15, 2024, with retrospective billing privileges beginning February 14, 2024.

I. Background and Undisputed Facts

The following facts are undisputed.

Petitioner Karas is solely owned by Petitioner Hana.  CMS Ex. 1 at 11.

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On November 16, 2023, National Government Services, the Medicare administrative contractor (MAC), received a Medicare enrollment application from Petitioner Karas to enroll in Medicare for the first time as a physician practice group.  CMS Ex. 1 at 12, 20‑21, 32-35; CMS Ex. 2 at 12.  The application indicated that Petitioner Hana was reassigning his benefits, that is, the right to file claims with Medicare for care and services delivered to Medicare-eligible beneficiaries, to Petitioner Karas.  CMS Ex. 1 at 35; CMS Ex. 2 at 30-31.

On November 16, 2023, the MAC also received a Medicare enrollment application from Petitioner Hana reassigning his right to receive payment for Medicare claims to Petitioner Karas.  CMS Ex. 2 at 32-35.

The MAC notified Petitioners by email dated November 29, 2023, that the November 16, 2023 application for Petitioner Karas was incomplete.  CMS Ex. 1 at 12, 36-37; CMS Ex. 2 at 12.

On January 22, 2024, the MAC notified Petitioners Karas and Hana that their applications were rejected.  CMS Ex. 1 at 12, 38-39; CMS Ex. 2 at 12, 38-39; P. Ex. 1 at 16-17.

Petitioner Karas filed a new Medicare enrollment application on March 15, 2024.  CMS Ex. 1 at 40-53; CMS Ex. 2 at 40-53.

Petitioner Hana filed a Medicare enrollment application on March 15, 2024.  CMS Ex. 1 at 54-60; CMS Ex. 2 at 54-60.  The application showed Petitioner Hana was reassigning his Medicare claims to Petitioner Karas.  CMS Ex. 1 at 60; CMS Ex. 2 at 60.

On May 10, 2024, the MAC notified Petitioners that the Medicare enrollment applications for Petitioner Hana and Petitioner Karas were approved with effective dates of February 14, 2024.2  CMS Ex. 1 at 61-63; CMS Ex. 2 at 61-63; P. Ex. 1 at 21.

Petitioners requested reconsidered determinations on June 14, 2024.  CMS Ex. 1 at 7-15; CMS Ex. 2 at 7-15.

On August 19 and 29, 2024, the MAC issued reconsidered determinations.  But for the dates and addressees, the reconsidered determinations are essentially identical.  CMS Ex. 1 at 1-6; CMS Ex. 2 at 1-6.  The MAC determined that the applications were received

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by the MAC on March 15, 2024, and that Petitioners were entitled to 30 days of retrospective billing privileges beginning February 14, 2024.3  CMS Ex. 1 at 3; CMS Ex. 2 at 3.

On October 18, 2024, a request for hearing before an administrative law judge (ALJ) was filed on behalf of Petitioner Karas and the case was given docket number C-25-66.  On October 22, 2024, the case was assigned to me and my Standing Order was issued.  On October 25, 2024, a request for hearing was filed on behalf of Petitioner Hana and the case was given docket number C-25-84.  On October 28, 2024, the case was assigned to Judge Bell.  Petitioners requested that C-25-66 and C-25-84 be consolidated.  Therefore, on November 6, 2024, with concurrence of Judge Bell, C-25-84 was reassigned to me.  On November 8, 2024, I ordered the consolidation of C-25-66 and C‑25-84, the dismissal of C-25-66, and that my Standing Order issued in C-25-66 would control case development.

CMS filed a motion for summary judgment and prehearing brief (CMS Br.) on December 13, 2024, with CMS Exs. 1 through 6.  On January 17, 2025, Petitioners filed a cross-motion for summary judgment and prehearing brief (P. Br.) with Petitioners’ Exhibit (P. Ex.) 1.  On February 14, 2025, CMS filed a motion for leave to file a reply brief out of time, which is granted, with a copy of its reply brief (CMS Reply).  On March 6, 2025,

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Petitioner filed a reply brief (P. Reply).  The parties have made no objections to my consideration of CMS Exs. 1 through 6 and P. Ex. 1, and they are admitted as evidence.

I accept as true for purposes of summary judgment that

Petitioners began serving Medicare-eligible beneficiaries by about October 16, 2023, but Petitioners have not been paid for those services.  P. Br. at 2; P. Ex. 1 at 2-3.

Petitioners were led to believe by their revenue cycle manager that their applications were in process in November 2023, and they believed that they would be able to bill for services rendered to Medicare-eligible beneficiaries in the fall of 2023.  P. Br. at 2; P. Ex. 1 at 2.

Petitioners’ revenue cycle manager was an employee or contractor of Petitioner Karas.  P. Br. at 2.

Petitioners’ revenue cycle manager represented4 to Petitioners that he submitted a Medicare enrollment application (CMS-855I) in response to a request from the MAC, that he had done so three times, and that he was told in a telephone call with the MAC that all required documents had been timely submitted and it was complete.  P. Br. at 2-3; P. Ex. 1 at 2-4, 6; P. Reply at 2.

The Medicare enrollment process changed related to reassigning benefits effective October 31, 2023, after Petitioners started completing their enrollment applications on October 10, 2023, and before the applications were submitted on November 16, 2023.  The change was a change to the Medicare enrollment applications (CMS-855 forms).  More specifically the change was that reassignment information would no longer be reported on a CMS-855R as that information would be included on a CMS-855I.  P. Ex. 1 at 3, 5-6; CMS Ex. 5.

Petitioners acted in good faith.  P. Br. at 5.

Petitioners suffered significant financial hardship of approximately $160,000, because Petitioners could not file claims with Medicare for care and services for

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Medicare-eligible beneficiaries from October 16, 2023 to February 14, 2024.  P. Br. at 3; P. Ex. 1 at 4, 7.

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.5  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)).

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 from a Medicare beneficiary to a Medicare-enrolled provider or supplier is limited.  The reassignment of the right to file a Medicare claim

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from an enrolled provider or supplier to another is very limited.  42 C.F.R. pt. 424, subpt. 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).  In this case, the MAC approved the reassignment from Petitioner Hana to Petitioner Karas, Petitioner Hana’s practice group, effective the date of enrollment of Petitioner Karas.  CMS Ex. 1 at 61-63; CMS Ex. 2 at 61-63; P. Ex. 1 at 21.  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, the reassignment could not occur until Petitioner Karas was enrolled in Medicare with billing privileges.

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

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

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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. LLC, DAB No. 2573 at 7.  Appeal and review rights are specified by 42 C.F.R. § 498.5.

B.  Issues

Whether Petitioner Karas’ effective date for Medicare enrollment and billing privileges is March 15, 2024, with retrospective billing privileges beginning February 14, 2024.

Whether the reassignment of benefits by Petitioner Hana to Petitioner Karas was on March 15, 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.

1.  Summary judgment is appropriate.

Both parties assert that they are entitled to summary judgment.  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’ motion for summary judgment in their favor must be denied.

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,

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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 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. Part 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

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subject to 42 C.F.R. Part 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 Karas’ Medicare enrollment and billing privileges and the reassignment Medicare benefits from Petitioner Hana to Petitioner Karas.  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.  Petitioners’ arguments must be resolved against them as matters 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 and billing privileges of Petitioner Karas is March 15, 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 retrospectively bill Medicare for services provided to Medicare-eligible beneficiaries up to 30 days prior to the effective date of enrollment, that is, beginning on February 14, 2024.

4.  Pursuant to 42 C.F.R. § 424.522(a), Petitioner Hana reassigned his Medicare claims to Petitioner Karas, effective March 15, 2024, the effective date of Medicare enrollment of Petitioner Karas.

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 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

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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 November 16, 2023, the MAC received Medicare enrollment applications for Petitioners – an initial enrollment application for Petitioner Karas and a reassignment application for Petitioner Hana.  CMS Ex. 1 at 12, 20-21, 32-35; CMS Ex. 2 at 12.  But on January 22, 2024, the MAC notified Petitioners that the November 16, 2023 enrollment application for Petitioner Karas was rejected because Petitioners failed to comply with a November 29, 2023 MAC request for Petitioners to file a complete application.  CMS Ex. 1 at 12, 36, 38-39; CMS Ex. 2 at 12, 38-39; P. Ex. 1 at 16-17.  Pursuant to 42 C.F.R. § 424.525(d), there is no right to review of the rejection of an enrollment application.  Therefore, Petitioners have no right to request review of the MAC’s decision to reject Petitioners’ November 16, 2023 applications, and I have no authority to review the rejection determination.

On March 15, 2024, Petitioners submitted and the MAC received the Medicare enrollment applications of Petitioner Karas and the application to reassign benefits from Petitioner Hana to Petitioner Karas.  CMS Ex. 1 at 40-60; CMS Ex. 2 at 40-60.  On May 10, 2024, the MAC notified Petitioners of its initial decision to approve Petitioner’s enrollment in Medicare and Petitioner Hana’s reassignment to Petitioner Karas.  CMS Ex. 1 at 61-63; CMS Ex. 2 at 61-63; P. Ex. 1 at 21.  Therefore, the March 15, 2024 enrollment applications were the applications that the MAC processed to approval.

Petitioner Karas began providing services on or about October 16, 2023.  But March 15, 2024, is later than October 16, 2023.  Therefore, 42 C.F.R. § 424.520(d)(1) dictates that the effective date of Medicare enrollment and billing privileges for Petitioner Karas is March 15, 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 March 15, 2024, which was February 14, 2024.  Finally, Petitioner Hana could reassign his right to file claims for services provided to Medicare-eligible beneficiaries to Petitioner Karas no earlier than March 15, 2024, when Petitioner Karas was first enrolled in Medicare.  42 C.F.R. § 424.522(a).

Petitioners argue that the effective date of Petitioner Karas’ Medicare enrollment and billing privileges should be November 16, 2023, with retrospective billing privileges beginning on October 16, 2023.  If Petitioner prevailed on this argument, Petitioner

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Hana’s reassignment effective date would be November 16, 2023, Petitioner Karas’ enrollment effective date.  Petitioners advance two theories in their brief.

Petitioners’ first theory is that there was no material difference in the information provided to the MAC/CMS comparing the applications filed November 16, 2023, and those filed on March 15, 2024, just different forms.  Petitioners reason that the effective date of Medicare enrollment and billing privileges should be determined based on the MAC’s receipt of the November 16, 2023 enrollment application.  P. Br. at 3-5.  But the undisputed fact is that the November 16, 2023 application of Petitioner Karas was rejected on January 22, 2024, because Petitioners failed to comply with the MAC’s November 29, 2023 request that Petitioners provide a complete application.  CMS Ex. 1 at 12, 38-39; CMS Ex. 2 at 12, 38-39; P. Ex. 1 at 16-17.  The MAC’s determination to reject the November 16, 2023 application is not subject to my review.  42 C.F.R. § 424.525(d).  After the rejection, Petitioners filed new applications that were processed to approval.  The Act and regulations grant me no authority to reinstate the November 16, 2023 applications; to treat the March 15, 2024 applications as simple amendments to the rejected November 16, 2023 applications; or to otherwise treat the November 16, 2023 application as the approved application.  As the Board stated in Sentinel Medical Laboratories, Inc.,

It is well established that administrative forums, such as this Board and the Department’s ALJs, do not have the authority to ignore unambiguous statutes or regulations on the basis that they are unconstitutional.  A legislative rule is binding on the agency that issues it.  1 Kenneth Culp Davis and Richard J. Pierce, Jr., Administrative Law Treatise, § 6.5 (3rd ed. 1994), citing U.S. v. Nixon, 418 U.S. 683 (1974) (where the court noted that the executive branch was bound by the terms of a regulation it had issued, even though it was within its power to change that regulation).  Federal courts have refused “to recognize in administrative officers any inherent power to nullify legislative [or executive] enactments because of personal belief that they contravene the [C]onstitution.” Gibas v. Saginaw Mining Co., 748 F.2d 1112, at 1117 (6th Cir. 1984) (citation omitted).  Thus, courts have noted that challenges to the constitutionality of an agency regulation lie outside the cognizance of that agency, and that generally, an ALJ is bound by the regulations promulgated by his administrative agency.  Howard v. FAA, 17 F.3d 1213, 1218 (9th Cir. 1994); Stieberger v. Heckler, 615 F.Supp. 1315, 1386 (S.D.N.Y. 1985), citing D’Amico v. Schweiker, 698 F.2d 903 (7th Cir. 1983).

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Sentinel Med. Labs., Inc., DAB No. 1762 at 9 (2001), aff’d sub nom., Teitelbaum v. Health Care Fin. Admin., 32 F. App’x 865 (9th Cir. 2002).  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 argue, in the alternative, that I have authority to grant Petitioners an earlier effective date of Medicare enrollment and billing privileges, citing the Board decision in West Norman Endoscopy Ctr., LLC, DAB No. 2331 (2010).  P. Br. at 5-6.  Petitioner is correct that the Board in West Norman changed the effective date of Medicare enrollment of West Norman based on the Board finding that West Norman met all enrollment requirements on a date earlier than that found by CMS and the ALJ.  But the decision in West Norman is inapposite as it was based on a regulation (42 C.F.R. § 489.13(d), which was deleted shortly after the Board decision) that was interpreted to grant an ALJ or the Board the discretion to review when a Petitioner met Medicare enrollment requirements.  West Norman, DAB No. 2331 at 3.  The current regulation grants no discretion to the MAC, CMS, the ALJ, or the Board as the determination of the effective date for suppliers listed in 42 C.F.R. § 424.520(d)(2) (which includes physician and physician practice groups) turns solely on the later of two dates:  (1) when the MAC received the application it processed to approval; or (2) the date the supplier first began furnishing services at a new practice location.  42 C.F.R. § 424.520(d)(1).  The determination of these dates, which is almost always based on objective evidence, leaves no discretion for an ALJ or the Board to change an effective date based on a determination that an enrolling supplier met Medicare requirements earlier than the date a supplier files an enrollment application the MAC can process to approval.  The fact that there can be no review of a rejection of a Medicare enrollment application according to 42 C.F.R. § 424.525(d), further limits the scope of review and prevents an ALJ or the Board from reviewing whether a rejected application was complete and showed all Medicare requirements were met.

Petitioners advance two additional theories in their reply brief:  that Petitioners detrimentally relied on representations by the MAC that the November 16, 2023 application was complete with only technical changes required; and a contract theory.  P. Reply at 1-3.

Petitioners assert they relied upon representations of the MAC that their November 16, 2023 applications were complete and Petitioner construed the representation to indicate that the November 16, 2023 application would be approved with retrospective billing beginning October 16, 2023.  P. Reply at 1-2.  Petitioners assert, and I accept as true for purposes of summary judgment, that Medicare-eligible beneficiaries were provided care and services at Petitioner Karas and I infer by Petitioner Hana beginning October 16, 2023.  Petitioners cannot credibly explain (and a jury could not find) how the MAC could have informed them in October 2023 that an application that was not filed until November 16, 2023 was complete.  Therefore, Petitioners’ detrimental reliance theory falls apart as clearly the determination to treat Medicare-eligible beneficiaries beginning

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about October 16, 2023, was made with no reliance upon a representation by the MAC that had not even received the application.  The theory is no more meritorious for the period after the filing of the November 16, 2023 applications and February 14, 2024, the first day of retrospective billing possible under the regulation.  Petitioners had seen Medicare-eligible beneficiaries for approximately 30 days before they filed the November 16, 2023 application.  Therefore, even if a MAC representative represented that the November 16, 2023 application was complete, Petitioners do not identify what action they took in reliance upon the representation.  Petitioners have filed no affidavit or declaration in support of an unarticulated position that Petitioners would have ceased seeing Medicare-eligible beneficiaries mitigating their risk for missed claims if they knew that their November 26, 2023 applications could be rejected on January 22, 2024.  In fact, there is no evidence Petitioners stopped seeing Medicare-eligible beneficiaries after Petitioners received the January 22, 2024 MAC rejection notice.  The evidence only shows that after nearly two months, Petitioner filed new applications on March 15, 2024, which were ultimately approved.  I accept as true for purposes of summary judgment that Petitioners were told that the MAC represented that the November 16, 2023 applications were timely and complete.  But Petitioners have offered no evidence to show that they determined to see Medicare-eligible beneficiaries prior to February 14, 2024, relying upon statements of the MAC or CMS.

Petitioners deny that they seek equitable relief.  P. Reply at 3.  Whether Petitioners’ requests and arguments are that I fashion equitable relief, or their request is that I depart from the limits on my review authorized by the Act and regulations, I can do neither.  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).  And 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.

Petitioners’ argument could also be construed to be an argument that CMS should be estopped from denying Petitioners’ billing privileges as early as October 16, 2023.  But an estoppel 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 intentionally 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).

Petitioners’ final argument is that under basic contract principles they should be entitled to payment from Medicare for care and services delivered to Medicare beneficiaries between October 16, 2023 and February 14, 2024.  Petitioners assert that the MAC “confirmed receipt of all necessary enrollment documents from Petitioners, and in exchange, Petitioners delivered medical care to eligible patients.”  P. Reply at 2.  It is not clear whether Petitioners consider their applications as the offer and the confirmation of

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the MAC was the acceptance.  But a detailed discussion of basic contracting including offers, acceptance, consideration, and who is authorized to bind the United States to an express or implied contract, is unnecessary.  Petitioners cite to no provision of the Act or regulations or a decision of the Board or a court to support their contract theory.  Petitioners’ argument must be rejected as there is no legal authority suggesting that the Secretary may be required to expend funds from the Medicare trust fund based on an implied contract on facts like those presented by this case.  The Secretary is limited by section 1866 of the Act to making payment to those properly enrolled in the Medicare program.  Furthermore, Petitioners’ theory is clearly an equitable theory and as already explained I have no authority to grant any equitable relief.

III. Conclusion

For the foregoing reasons, the effective date of enrollment and billing privileges of Petitioner Karas is March 15, 2024, with retrospective billing privileges beginning February 14, 2024.  Petitioner Hana reassigned his right to file claims with Medicare to Petitioner Karas effective March 15, 2024.