Jamie DiMarco, DAB CR6725 (2025)

DECISION

Petitioner, Jamie DiMarco, challenges the Centers for Medicare & Medicaid Services’ (CMS’s) determination of her effective date as a biller to the Medicare program.  As explained below, I find CMS properly determined August 23, 2024, with retrospective billing permitted as of July 24, 2024, as the effective date of Petitioner’s Medicare enrollment. 

I. Background

Petitioner is a clinical social worker that received temporary Medicare billing privileges on September 1, 2020.  CMS Exhibits (Exs.) 1 at 1-2, 2 at 2.  Specifically, on November 16, 2020, CMS contractor National Government Services, Inc. (NGS) advised Petitioner that she was “granted temporary Medicare billing privileges pursuant to the CMS waiver of certain enrollment and screening requirements during the national emergencies associated with COVID-19.”  CMS Ex. 2 at 1.  In receiving the temporary billing privileges, NGS advised Petitioner that: 

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• Upon the lifting of the Emergency Disaster Declaration, you will be asked to submit a complete CMS-855 enrollment application in order to establish full Medicare billing privileges, following the Medicare Administrative Contractor’s (MAC’s) review of your application.  Failure to respond to the MAC's request within 30 days of the notification, will result in the deactivation of your temporary billing privileges. 

Id.  On June 1, 2023, following the conclusion of the public health emergency, NGS notified Petitioner that she was required to submit a complete CMS-855 application within 90 days in order to convert the temporary enrollment “into a full enrollment with the Medicare program.”  CMS Exs. 12, 13.  NGS sent these letters to both correspondence addresses provided by Petitioner.  Id.; see CMS Ex. 1 at 2. 

On August 14, 2023, NGS received Petitioner’s CMS-855I application.  CMS Ex. 3.  On September 12, 2023, NGS informed Petitioner that revisions and supporting documentation were needed to continue processing the application.  CMS Ex. 4.  NGS warned that the application may be rejected if this information was not submitted within 30 days.  Id.  Petitioner did not provide any of the requested revisions or documentation, and as a result, on October 16, 2023, NGS rejected her application.  CMS Ex. 5. 

On July 3, 2024, NGS subsequently deactivated Petitioner’s Medicare billing privileges effective June 22, 2024.  CMS Ex. 10.  The basis of the deactivation was Petitioner’s failure to convert her temporary billing privileges to permanent and to reply to NGS’s requests for information.  Id.  

On August 6, 2024, NGS received a revalidation application from Petitioner.  CMS Ex. 11.  On August 19, 2024, NGS advised that it received an “unsolicited revalidation.”  CMS Ex. 14.  NGS also informed Petitioner that if she was seeking to change her Medicare information, she must submit a new CMS-855.  Id.  

On August 23, 2024, Petitioner submitted a CMS-855I, new enrollment and change of information application.  CMS Ex. 6.  In this application, Petitioner advised that she sought to enroll American Elder Care Mental Health Services as a solely owned group.  Id.  Petitioner also requested to transfer her temporary enrollment Provider Transaction Access Number (PTAN).  Id. at 4.  

On October 18, 2024, NGS approved Petitioner’s application as of August 23, 2024, with retrospective billing permitted as of July 24, 2024, and assigned a new PTAN.  CMS Ex. 7.  

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Petitioner thereafter filed a request for reconsideration of the gap in billing privileges.  CMS Exs. 8-9.  On February 10, 2025, NGS denied Petitioner’s request for reconsideration and found no error in granting Petitioner Medicare billing privileges as of July 24, 2024, which resulted in a billing gap from June 22, 2024 through July 23, 2024.  CMS Ex. 13. 

On February 24, 2025, Petitioner timely requested a hearing to dispute the reconsidered determination.  DAB E-File Doc. Nos. 1-1_a.  On February 25, 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 14, 2025, CMS filed a motion for summary judgment and pre-hearing brief and 15 proposed exhibits.  Id. at Doc. Nos. 7-10_a.  On April 16, 2025, Petitioner timely filed a pre-hearing brief along with a copy of the reconsidered decision.  Id. at Doc. Nos. 11-11_a.  

II. Admission of Exhibits and Decision on the Record

Petitioner did not object to CMS Exs. 1 through 15.  In the absence of objections, I admit CMS Exs. 1 through 15 into the record.  Petitioner has not submitted any proposed exhibits.  

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 her hearing request. 

III. Issue

Whether CMS had a legitimate basis to establish August 23, 2024, with retrospective billing permitted as of July 24, 2024, as the effective date of Petitioner’s Medicare billing privileges. 

IV. Jurisdiction

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

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

1. A. Applicable Law

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 enrollment 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 a supplier’s 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).2

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1. B. Analysis
   1. 1. Petitioner’s effective date of Medicare enrollment is August 23, 2024, with retrospective billing permitted as of July 24, 2024.

The effective date for Medicare billing privileges for physicians, non-physician practitioners, and physician or non-physician practitioner organizations is the later of the “date of filing” or the date the supplier first began furnishing services at a new practice location.  42 C.F.R. § 424.520(d).  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 2 (2016). 

In this case, Petitioner filed a new enrollment application on August 23, 2024, and this application was processed to approval.  CMS Exs. 6, 7.  NGS appropriately found the effective date of Medicare billing privileges for Petitioner to be August 23, 2024, the date of the filing of the Medicare application that was subsequently approved by the contractor.  CMS Ex. 7; Timothy Onyiuke, DAB No. 3092 at 2 (2023).  NGS also correctly found that Petitioner qualified for retrospective billing privileges of 30 days, resulting in an effective retrospective billing date of July 24, 2024.  CMS Ex. 7; see 42 C.F.R. § 424.521(a)(1)(i). 

Thus, under the above regulations, based on the application that was processed to approval, Petitioner’s billing privileges can begin no earlier than the dates cited above. 

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2. 2. I have no authority to review the deactivation of Petitioner’s temporary billing privileges and cannot afford her equitable relief.

Petitioner argues that her temporary Medicare billing privileges should not have been deactivated because she did not receive the notices NGS sent advising that she was required to revalidate in order to receive permanent billing privileges after being granted temporary privileges during the public health emergency.  See Request for Hearing (RFH) at 1.  Petitioner specifically states that “[we] never received notice that we would be cut off due to our PTAN being covid temporary.”3 Id. 

Giving full credit to Petitioner’s contention that she did not receive the notices, this is immaterial to the outcome in this case.  That is because the lack of notice is only relevant, if at all, to whether NGS acted properly in deactivating Petitioner’s temporary billing privileges.  Petitioner implicitly acknowledges that her hearing request is, in essence, a challenge to the deactivation of her billing privileges.  Id. (“then surprising us with termination and forcing us to reapply”).  However, I do not have jurisdiction to review CMS’s deactivation of Petitioner’s Medicare temporary billing privileges because deactivation is not an “initial determination.”  See 42 C.F.R. §§ 424.545(b), 498.3(b); see also Willie Goffney, Jr., M.D., DAB No. 2763 at 4-5 (2017). 

Thus, even if Petitioner never received the notices, this would not be a basis to grant an earlier effective date.  As an appellate panel of the Departmental Appeals Board (DAB) observed in James Shepard, M.D., DAB No. 2793 (2017), providers and suppliers may not challenge indirectly an action for which the regulations prohibit direct administrative review.  Id. at 8.  In Shepard, the panel held that the supplier could not obtain review of a CMS contractor’s rejection of a previous enrollment application by challenging the effective date of enrollment based on a later approved application.  Id.  For the same reasons articulated by the panel in Shepard, Petitioner’s arguments in the present case amount to a backdoor challenge to a contractor determination—here, deactivation—for which there are no administrative appeal rights.  See id. 

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Lastly, I have no authority to 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 enrollment determined by CMS. 

VI. Conclusion

I affirm CMS’s decision that the effective date of Petitioner’s Medicare enrollment and billing privilege is August 23, 2024, with retrospective billing permitted as of July 24, 2024.