Rolla Neurology, Pain & Sleep, LLC, DAB CR6701 (2025)

DECISION

Petitioner, Rolla Neurology, Pain & Sleep, LLC, challenges the Centers for Medicare & Medicaid Services’ (CMS’s) determination of its effective date of reactivation as a biller to the Medicare program following a period of deactivation due to its failure to revalidate.  As explained below, I find CMS properly determined August 28, 2024 as the reactivation effective date of Petitioner’s Medicare enrollment, as that is the date the Medicare administrative contractor received Petitioner’s reactivation application that was subsequently approved. 

I. Background

Petitioner is a clinic/group practice that has been enrolled as a Medicare provider since July 20, 2007.  CMS Ex. 2.  On December 27, 2023, CMS contractor Wisconsin Physicians Service Government Health Administrators (WPS) advised Petitioner that it was obligated to revalidate its Medicare enrollment by March 31, 2024.  CMS Ex. 1.  The letter specifically advised that “[i]f we don’t receive your response by then, we may stop your Medicare billing privileges.”  Id. at 1. 

On May 1, 2024, Petitioner electronically submitted its revalidation application to WPS.  CMS Ex. 2.  In a letter dated May 7, 2024, WPS notified Petitioner that updates and additional documentation were required in order to complete processing of the application.  CMS Ex. 3.  The letter advised Petitioner to update its business practice location in Section 4A of the application and add the effective date of the new address, submit a copy of a business occupancy license/permit, and verify the change in the special payments address.  Id. at 1.  On May 8, 2024, Petitioner submitted a certificate of organization in response to WPS’s request.  CMS Ex. 4. 

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On May 21, 2024, WPS again notified Petitioner that it needed to update Section 4A of its application and add the effective date of its new address.  CMS Ex. 5.  That same day, Petitioner submitted a revised application.  CMS Ex. 6.  However, on May 24, 2024, WPS again advised Petitioner that it must “add the original practice location back in and end date [for] that location.  Then add the new correct location.  A practice location address cannot be edited or changed.  It must be end dated and a new practice location added.”  CMS Ex. 7.  WPS additionally advised that the failure to submit the required information within 16 days would result in Petitioner’s deactivation of its Medicare billing privileges.  Id.  Petitioner failed to submit the requested updates, and as a result, on June 11, 2024, WPS notified Petitioner that its revalidation application was rejected and that its Medicare billing privileges were deactivated effective June 10, 2024.  CMS Exs. 8, 9.  WPS advised Petitioner of its right to file a rebuttal if Petitioner believed the deactivation determination was incorrect.  CMS Ex. 8 at 1-2. 

Petitioner submitted a reactivation application on June 11, 2024.  CMS Ex. 10.  On June 21, 2024, WPS confirmed receipt and further notified Petitioner of additional documents that were required.  CMS Ex. 11.  Specifically, WPS requested that Petitioner submit Internal Revenue Service documentation with the legal business name and tax identification number of Petitioner as well as Form CMS 588, Authorization Agreement for Electronic Funds Transfer.  Id. at 1.  WPS also advised that it “may reject your application if you do not furnish complete information within 30 calendar days.”  Id.  Petitioner again failed to submit the requested documents, and, on July 22, 2024, WPS rejected its reactivation application.  CMS Ex. 12.  

On August 28, 2024, Petitioner electronically submitted another reactivation application, which WPS received that same day.  CMS Ex. 14.  WPS subsequently approved Petitioner’s reactivation application with an effective date of August 28, 2024.  CMS Ex. 15.  WPS further advised that there would be a gap in billing privileges from June 10, 2024 to August 27, 2024.  Id. at 1.  

Petitioner thereafter filed a request for reconsideration of the deactivation and the gap in billing privileges.  CMS Ex. 16.  On January 28, 2025, WPS denied Petitioner’s request for reconsideration and found no error in reactivating Petitioner’s Medicare billing 

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privileges as of August 28, 2024, with a billing gap from June 10, 2024 to August 27, 2024.  CMS Ex. 17 at 3. 

On March 3, 2025, Petitioner timely requested a hearing to dispute the reconsidered determination.  DAB E-File Doc. Nos. 1-1_b.  On March 5, 2025, the undersigned Administrative Law Judge (ALJ) was designated to hear and decide this case.  Id. at Doc. No. 2.  That same day, the Civil Remedies Division (CRD) acknowledged the hearing request and issued my Standing Pre-hearing Order (Standing Order).  Id. at Doc. No. 2_a.  Among other things, the Standing Order instructed the parties to file prehearing exchanges by specified dates.  Id. 

On April 9, 2025, CMS filed a motion for summary judgment, memorandum in support of its motion for summary judgment, and 17 proposed exhibits (CMS Exs. 1-17).  Id. at Doc. Nos. 4_a-6.  On April 22, 2025, Petitioner timely filed a letter, which I construe as a prehearing brief (P. Br.) (id. at Doc. No. 28) along with 20 documents, which I construe as Petitioner’s proposed exhibits (P. Exs. 1-20).  Id. at Doc Nos. 7-27. 

II. Admission of Exhibits and Decision on the Record

Petitioner did not object to CMS Exs. 1 through 17, which consist of documents from the proceedings below.  In the absence of objection, I admit CMS Exs. 1 through 17 into the record. 

Petitioner submitted 20 proposed exhibits (P. Exs. 1-20).  Although CMS did not object to Petitioner’s exhibits, I “must exclude ‘new documentary evidence’ – that is, documentary evidence that a provider did not previously submit to CMS at the reconsideration stage (or earlier) – unless [I] determine[] that ‘the provider or supplier has good cause for submitting the evidence for the first time at the ALJ level.’”  Care Pro Home Health, Inc., DAB No. 2723 at 11 (2016) (quoting 42 C.F.R. § 498.56(e)(1)).  As it appears that all the documents submitted by Petitioner are from the proceedings below, P. Exs. 1-20 are admitted into the record.  

If the parties wanted an in-person hearing, the parties had to submit written direct testimony from the witnesses and the opposing party had to request to cross-examine one or more of those witnesses.  Standing Order ¶¶ 11-13; CRDP §§ 16(b), 19(b). 

Because neither party offered written direct testimony, I do not need to hold a hearing and may issue a decision based on the written record.  Vandalia Park, DAB No. 1940 (2004).  Therefore, I deny CMS’s motion for summary judgment as moot.  In rendering this decision on the record, I address the matters raised by Petitioner in its hearing request. 

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III. Issue

Whether CMS had a legitimate basis to establish August 28, 2024, as the effective date of Petitioner’s reactivated Medicare billing privileges.

IV. Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2).  

V. Findings of Fact, Conclusions of Law, and Analysis1

1. A. Applicable Law
   1. 1. Enrollment

Petitioner participates in the Medicare program as a “supplier” of services.  Social Security Act (Act) § 1861(d); 42 C.F.R. § 498.2.  To receive Medicare payments for the services it furnishes to program beneficiaries, a prospective supplier must enroll in the program.  42 C.F.R. § 424.505.  “Enrollment” is the process by which CMS and its contractors:  (1) identify the prospective supplier; (2) validate the supplier’s eligibility to provide items or services to Medicare beneficiaries; (3) identify and confirm a supplier’s owners and practice location; and (4) grant the supplier Medicare billing privileges.  42 C.F.R. § 424.502. 

To enroll, a prospective supplier must complete and submit an enrollment application.  42 C.F.R. §§ 424.510(d)(1), 424.515(a).  An enrollment application is either a CMS‑approved paper application or an electronic process approved by the Office of Management and Budget.  42 C.F.R. § 424.502.  When CMS determines a prospective supplier meets the applicable enrollment requirements, it grants Medicare billing privileges, which means that the supplier can submit claims and receive payments from Medicare for covered services provided to program beneficiaries.  42 C.F.R. § 424.505. 

The effective date for its billing privileges “is the later of the date of filing” a subsequently approved enrollment application or “[t]he date that the . . . supplier first began furnishing services at a new practice location.”  42 C.F.R. § 424.520(d)(1) (emphasis added).  The “date of filing” is the date that the Medicare contractor “receives” a signed enrollment application that the Medicare contractor is able to process to approval.  73 Fed. Reg. 69,726, 69,769 (Nov. 19, 2008); Donald Dolce, M.D., DAB No. 2685 at 8 (2016).  If a supplier satisfies certain requirements, CMS may allow a supplier to bill retrospectively for up to 30 days prior to the effective date.  42 C.F.R. § 424.521(a)(1). 

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A Medicare beneficiary may assign the right to receive Medicare Part B benefits for covered medical services to an enrolled supplier who delivers those services.  Act § 1842(b)(3)(B)(ii) (42 U.S.C. § 1395u(b)(3)(B)(ii)); 42 C.F.R. § 424.55.  In certain circumstances, a supplier who has received an assignment of benefits may reassign those benefits to an employer, or to an individual or entity with which the supplier has a contractual arrangement.  Act § 1842(b)(6) (42 U.S.C. § 1395u(b)(6)); 42 C.F.R. § 424.80(b)(1)‑(2).  To reassign Medicare benefits, a supplier must submit and obtain CMS’s approval of a reassignment application.  Gaurav Lakhanpal, MD, DAB No. 2951 at 1-2 (2019) (citing 71 Fed. Reg. 20,754, 20,756 (Apr. 21, 2006)).  CMS applies the effective date rules at 42 C.F.R. §§ 424.520(d) and 424.521(a)(1) to reassignments of Medicare benefits.  See Medicare Program Integrity Manual (MPIM) (CMS Pub. 100-08) §§ 15.5.20(E)(3), 15.17. 

2. 2. Revalidation

To maintain billing privileges, a supplier must resubmit and recertify the accuracy of its enrollment information at least every five years, a process referred to as “revalidation.”  42 C.F.R. § 424.515.  Beyond these periodic revalidations, CMS may, at other times and for its own reasons, ask a supplier to recertify the accuracy of its enrollment information.  42 C.F.R. § 424.515(d).  Within 60 days of receiving CMS’s notice to recertify, the supplier must submit an appropriate enrollment application with complete and accurate information and supporting documentation.  42 C.F.R. § 424.515(a)(2). 

3. 3. Deactivation

The regulation authorizing deactivation explains that “[d]eactivation [of Medicare billing privileges] is intended to protect the provider or supplier from the misuse of its billing number and to protect the Medicare Trust Funds from unnecessary overpayments.”  86 Fed. Reg. 62,240, 62,359 (Nov. 9, 2021).  CMS is authorized to deactivate an enrolled supplier’s Medicare billing privileges if the enrollee does not “furnish complete and accurate information and all supporting documentation within 90 calendar days of receipt of notification from CMS to submit an enrollment application and supporting documentation, or resubmit and certify to the accuracy of its enrollment information.”  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); see also 42 C.F.R. § 424.540(e). 

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4. 4. Reactivation

The reactivation of an enrolled supplier’s billing privileges is governed by 42 C.F.R. § 424.540(b).  The process for reactivation is contingent on the reason for deactivation.  If CMS deactivates a supplier’s billing privileges due to a reason other than nonsubmission of a claim, the supplier must apply for CMS to reactivate its Medicare billing privileges by completing and submitting the appropriate enrollment application(s) or recertifying its enrollment information, if deemed appropriate.  42 C.F.R. § 424.540(a)(3), (b)(1).  The effective date of a reactivation of billing privileges, following a period of deactivation, is the date on which the Medicare contractor received the supplier’s submission that was processed to approval.  42 C.F.R. § 424.540(d)(2). 

1. B. Analysis
   1. 1. WPS received Petitioner’s reactivation enrollment application on August 28, 2024 that was processed to approval, which is the effective date of its Medicare reactivated enrollment.

As discussed above, the effective date of a reactivation of Medicare billing privileges is the date on which the Medicare contractor received the supplier’s submission that was subsequently processed to approval.  Id. 

In this case, WPS received a reactivation enrollment application from Petitioner on August 28, 2024, and this application was processed to approval.  CMS Exs. 14, 15.  WPS appropriately found the effective date of Medicare billing privileges for Petitioner to be August 28, 2024, the date of receipt of the Medicare application that was subsequently approved by the contractor with a gap in billing privileges from June 10, 2024 through August 27, 2024.  CMS Exs. 15, 17. 

While the record also contains prior revalidation applications submitted on May 1, 2024 and June 11, 2024, there is no evidence in the record before me, including any claim by Petitioner, of an application submitted earlier than the one Petitioner submitted on August 28, 2024, that WPS received and subsequently approved.  Therefore, pursuant to 42 C.F.R. § 424.540(d)(2), the date WPS received Petitioner’s subsequently-approved reactivation enrollment application – August 28, 2024 – is the correct effective date of enrollment.  Michael B. Zafrani, M.D., DAB No. 3075 at 2 n.1 (2022).  

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2. 2. I have no authority to review the deactivation of Petitioner’s billing privileges or the rejection of Petitioner’s prior applications and cannot afford it equitable relief.

In its brief, Petitioner generally contends that WPS erred in rejecting its prior applications and deactivating its Medicare billing privileges, which resulted in a gap of billing privileges from June 10, 2024 through August 27, 2024.  P. Br. at 1-3.  Petitioner specifically details speaking with “numerous different representatives [from WPS] that were telling different things that [were] needed to [be] update[d]” in its application.  Id.  While Petitioner does not deny that its previous applications were rejected, it contends that its owner “exhausted a lot of time . . . to oblige to all of [the] changes very efficiently to meet WPS standards.”  Id.  Petitioner’s reconsideration request also includes a financial hardship argument.  See CMS Ex. 16. 

However, I have no authority to review WPS’s deactivation issued on June 11, 2024.  CMS Ex. 8; Howard M. Sokoloff, DPM, MS, Inc., DAB No. 2972 at 6 (2019); Wishon Radiological Med. Grp., Inc., DAB No. 2941 at 6-7 (2019); Ark. Health Grp., DAB No. 2929 at 7-9 (2019); James Shepard, M.D., DAB No. 2793 at 8 (2017).  Deactivation decisions in fact have an altogether separate review process that requires a provider or supplier dissatisfied with deactivation to file a rebuttal with CMS’s administrative contractor.  42 C.F.R. §§ 424.545(b), 424.546.  It is not clear from the record whether Petitioner sought relief from WPS through this rebuttal process.  My jurisdiction in this case is limited to reviewing the effective date of the approval of Petitioner’s reactivation enrollment application.  42 C.F.R. § 498.3(b)(15). 

Similarly, the rejection of Petitioner’s applications by WPS on June 11, 2024, and July 22, 2024, is not mentioned on the list of initial determinations by CMS that a supplier may appeal to an ALJ.  CMS Exs. 8, 12; see 42 C.F.R. § 498.3(b).  Furthermore, applications that are rejected are not afforded appeal rights.  42 C.F.R. § 424.525(d).  As the Departmental Appeals Board (Board) stated, there is “no applicable authority allowing a supplier to seek review of an unappealable rejection of an incomplete application by the ‘back door’ route of challenging the effective date of a later application which was processed to approval.”  Wishon Radiological Med. Grp., Inc., DAB No. 2941 at 8. 

Nor may I direct the contractor to allow retrospective reimbursement during the gap in billing privileges from June 10, 2024 through August 27, 2024.  A supplier may not receive payment for services or items furnished while deactivated.  42 C.F.R. §§ 424.540(e), 424.555(b).  This represents a departure; CMS previously permitted retrospective billing after reactivation.  In promulgating the new regulation, the Secretary explained the change:  

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• After careful reflection . . . the most sensible approach from a program integrity perspective is to prohibit such payments altogether.  In our view, a provider or supplier should not be effectively rewarded for its non-adherence to enrollment requirements (for example, failing to respond to a revalidation request or failing to timely report enrollment information changes) by receiving payment for services or items furnished while out of compliance. 

86 Fed. Reg. 62,240, 62,359-60 (Nov. 9, 2021); see Michael B. Zafrani, M.D., DAB No. 3075 at 2 n.1. 

Lastly, I have no authority to review CMS’s revalidation process or otherwise grant Petitioner any form of equitable relief.  See, e.g., US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the Board is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”); Pepper Hill Nursing & Rehab. Ctr., LLC, DAB No. 2395 at 11 (2011) (holding that the ALJ and Board were not authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements); UpturnCare Co., DAB No. 2632 at 19 (2015) (providing the Board may not overturn the denial of provider enrollment in Medicare on equitable grounds).  While I am sympathetic to the fact that Petitioner’s practice has suffered a significant loss of income while rendering services to the Medicare program, I have no authority under the law to revise the effective date of reactivation determined by CMS.  

VII. Conclusion

Because WPS received Petitioner’s subsequently-approved reactivation application on August 28, 2024, that same date is the earliest possible effective date.  See 42 C.F.R. § 424.540(d)(2).  

I may not review the deactivation or the rejected applications.  

Retrospective reimbursement is not available for those whose enrollment has been deactivated.  42 C.F.R. § 424.540(e). 

                                                                                    s/Benjamin Zeitlin

Benjamin Zeitlin

Administrative Law Judge