Joseph Deluca, Thomas Kennedy, Tiffany Lucas, and Julie Wylie, DAB CR6710 (2025)

DECISION

The effective date of the reassignment of Medicare benefits of Petitioner Thomas Kennedy is December 5, 2023, with retrospective billing privileges authorized beginning November 5, 2023.  The effective date of the reassignment of Medicare benefits of Petitioners Joseph Deluca, Tiffany Lucas, and Julie Wylie is December 7, 2023, with retrospective billing privileges authorized beginning November 7, 2023.

I.  Background and Procedural History

Petitioners are suppliers in Arkansas.  See CMS Exhibits (Exs.) 1, 9, 17, 25.  The practice group Petitioners worked for underwent a change of ownership that included a name change, and new tax identificaton and National Provider Identifier (NPI) numbers.  See CMS Exs. 5 at 3; 13 at 3; 21 at 3; 29 at 3.  On December 5, 2023, Novitas Solutions (Novitas) received a Medicare reassignment application from Petitioner Kennedy to reassign his Medicare billing privileges to South Arkansas Physician Group.  CMS Ex. 17 at 4.  On December 27, 2023, Novitas approved Petitioner Kennedy’s reassignment of

Page 2

benefits, effective December 5, 2023, with retrospective billing privileges authorized beginning November 5, 2023.  CMS Ex. 20.

On December 7, 2023, Novitas received Medicare reassignment applications from Petitioners Deluca, Lucas, and Wylie to reassign their Medicare billing privileges to South Arkansas Physician Group.  CMS Exs. 1 at 3, 9 at 3, 25 at 3.  On December 21, 2023, Novitas approved Petitioner Lucas’s reassignment of benefits, effective December 7, 2023, with retrospective billing privileges authorized beginning November 7, 2023.  CMS Ex. 28.  On January 3, 2023, Novitas approved Petitioners Deluca and Wylie’s reassignment of benefits, effective December 7, 2023, with retrospective billing privileges authorized beginning November 7, 2023.  CMS Exs. 4, 12.

On February 22, 2024, Petitioners submitted requests for reconsideration.  CMS Exs. 5, 13, 21, 29.  Petitioners argued that the effective date of their reassignments should be July 1, 2023.  Id.  Petitioners argued that they were waiting on the change of ownership (CHOW) to be completed because they were told they could not submit their reassignment applications until it was done.  Id.

Novitas issued a reconsidered determination to Petitioner Kennedy on May 15, 2024, in which it explained that Petitioner’s reassignment of benefits application was received on December 5, 2023, and that the earliest possible billing date was November 5, 2023.  CMS Ex. 23.  Novitas stated that the effective date was issued correctly in accordance with CMS guidelines and that the July 1, 2023, requested date cannot be granted.  Id.

Novitas issued reconsidered determinations to Petitioners Deluca, Lucas, and Wylie on May 16, 2024 and May 17, 2024.  Novitas explained that Petitioners’ reassignment of benefits applications were received on December 7, 2023, and that the earliest possible billing date was November 7, 2023.  CMS Exs. 7, 15, 31.  Novitas stated that the effective date was issued correctly in accordance with CMS guidelines and that the July 1, 2023, requested date cannot be granted.  Id.

Petitioners submitted a request for an administrative law judge (ALJ) hearing that was received on July 12, 2024.  Thereafter, the Civil Remedies Division issued a standing pre-hearing order (Pre-Hearing Order) that directed the parties to file their respective pre-hearing exchanges.  CMS filed a pre-hearing brief and motion for summary judgment, along with 32 proposed exhibits (CMS Exs. 1-32).  Petitioners filed their own pre-hearing brief and motion for summary judgment, along with eight proposed exhibits (P. Exs. 1-8).  Neither party objected to the other’s exhibits, and, therefore, they are admitted into evidence.

Similarly, neither party has submitted written direct testimony, as addressed in sections 10 through 12 of the Pre-Hearing Order.  A hearing for the purpose of cross-examination

Page 3

is therefore unnecessary.  I consider the record in this case to be closed, and the matter is ready for a decision on the merits.1

This case was transferred to me on May 8, 2025.

II.  Issues

Whether the effective date of Petitioner Kennedy’s reassigned Medicare benefits is December 5, 2023, with retrospective billing privileges authorized beginning November 5, 2023.

Whether the effective date of Petitioners Deluca, Lucas, and Wylie’s reassigned Medicare benefits is December 7, 2023, with retrospective billing privileges authorized beginning November 7, 2023.

III.  Jurisdiction

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

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

Pursuant to 42 C.F.R. § 424.520(d), the effective date of Petitioner Kennedy’s reassignment of benefits is December 5, 2023, which is the date of receipt of the Medicare reassignment enrollment application that Novitas was able to process to approval, and retrospective billing privileges are authorized beginning November 5, 2023, pursuant to 42 C.F.R. § 424.521(a)(1). 

Pursuant to 42 C.F.R. § 424.520(d), the effective date of Petitioners Deluca, Lucas, and Wylie’s reassignment of benefits is December 7, 2023, which is the date of receipt of the Medicare reassignment enrollment application that Novitas was able to process to approval, and retrospective billing privileges are authorized beginning November 7, 2023, pursuant to 42 C.F.R. § 424.521(a)(1).

Page 4

Petitioners are “suppliers” for purposes of the Medicare program.  See CMS Exs. 7 at 1, 15 at 1, 23 at 1, 31 at 1; see also 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202 (definition of supplier), 498.2.  A “supplier” furnishes items or services under Medicare and the term applies to physicians or other practitioners who are not included within the definition of the phrase “provider of services.”  42 U.S.C. § 1395x(d).  A supplier must enroll in the Medicare program to receive payment for covered Medicare items or services.  42 C.F.R. § 424.505.  The regulations at 42 C.F.R. Part 424, subpart P, establish the requirements for a supplier to enroll in the Medicare program.  42 C.F.R. §§ 424.510-424.516; see also 42 U.S.C. § 1395cc(j)(1)(A) (authorizing the Secretary of the U.S. Department of Health and Human Services to establish regulations addressing the enrollment of providers and suppliers in the Medicare program).  A supplier who seeks billing privileges under Medicare “must submit enrollment information on the applicable enrollment application.”  42 C.F.R. § 424.510(a)(1).  “Once the provider or supplier successfully completes the enrollment process . . . , CMS enrolls the provider or supplier into the Medicare program.”  Id.; see also 42 C.F.R. § 424.510(d) (listing enrollment requirements).  When the contractor approves an enrollment application, it sets the effective date for approval of billing privileges.  See Alexander C. Gatzimos, MD, JD, LLC d/b/a Michiana Adult Medical Specialists, DAB No. 2730 at 2 (2016).  “The effective date of a physician’s or physician organization’s enrollment in Medicare is ‘the later of the date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor or the date [the supplier] first began furnishing services at a new practice location.’”  Alexander C. Gatzimos, DAB No. 2730 at 2-3, citing 42 C.F.R. § 424.520(d); see Gaurav Lakhanpal, MD, DAB No. 2951 at 6 (2019) (“the effective date of . . . reassignment of billing privileges is . . . the date that [the contractor] received [the] reassignment application that was subsequently approved.”).

The Departmental Appeals Board (DAB) has explained that “[t]he governing law on how CMS (and its Medicare contractors) determine the effective date for [suppliers] applying for Medicare billing privileges is set by regulation” at 42 C.F.R. § 424.520(d).  Willie Goffney, Jr., M.D., DAB No. 2763 at 7 (2017).  Petitioners explain that the applications for reassignment of benefits were not filed until December because they were waiting for the CHOW to be completed and that they continued to see patients in good faith between July 2023 and December 2023.  CMS Exs. 7, 15, 23, 31.  Petitioners requested in the alternative that CMS grant them 90 days retrospective billing pursuant to 42 C.F.R. § 424.521(a)(1)(ii) because Covid was still damaging the community they served in 2023.  P. Br. at 3-4.

However, as explained above, the effective date of a supplier’s enrollment in Medicare is the later of the date of filing of a Medicare application that is approved or the date the supplier first began furnishing services at a new location.  Petitioners may have been providing services under their new group as early as July 1, 2023 but the applications that Novitas processed and approved were not filed until December 5, 2023 and December 7, 2023.  Therefore, the earliest possible effective date for Petitioner Kennedy’s

Page 5

reassignment of benefits is December 5, 2023, pursuant to 42 C.F.R. § 424.520(d), with billing privileges authorized beginning 30 days earlier on November 5, 2023, pursuant to 42 C.F.R. § 424.521(a)(1) and the earliest possible effective date for Petitioners Deluca, Lucas, and Wylie is December 7, 2023, pursuant to 42 C.F.R. § 424.520(d), with billing privileges authorized beginning 30 days earlier on November 7, 2023, pursuant to 42 C.F.R. § 424.521(a)(1).  Accordingly, I conclude that, pursuant to 42 C.F.R. § 424.520(d), the effective date of Petitioner Kennedy’s reassignment of benefits is December 5, 2023, with retrospective billing privileges beginning November 5, 2023 and pursuant to 42 C.F.R. § 424.520(d), the effective date of Petitioners Deluca, Lucas, and Wylie’s reassignment of benefits is December 7, 2023, with retrospective billing privileges beginning November 7, 2023.  See, e.g., Gaurav Lakhanpal, DAB No. 2951 at 6 (2019).

To the extent that Petitioners’ request for an earlier billing date is based on principles of equitable relief, I cannot grant such relief.  US Ultrasound, DAB No. 2302 at 8 (2010) (“Neither the ALJ nor the [DAB] is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements.”).  Petitioners point to no authority3  by which I may grant their relief from the applicable regulatory requirements, and I have no authority to declare statutes or regulations invalid or ultra vires.  1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) (“An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground . . . .”).

V.  Conclusion

For the foregoing reasons, I uphold the December 5, 2023, effective date of Petitioner Kennedy’s reassigned Medicare benefits, with retrospective billing authorized beginning November 5, 2023.  I also uphold the December 7, 2023, effective date for Petitioners Deluca, Lucas, and Wylie’s reassigned Medicare benefits, with retrospective billing authorized beginning November 7, 2023.