Nailivery LLC, DAB CR6745 (2025)

DECISION

Petitioner, Nailivery LLC, is a company, owned and operated by licensed manicurist Danny Chu Doan, that provides mobile nail care services.  The company applied to enroll in the Medicare program.  The Medicare contractor, Noridian Healthcare Solutions, denied its enrollment application because a supplier of nail care services does not qualify to enroll in the Medicare program as a provider or as a supplier of medical and other health services.  Petitioner has appealed, and the Centers for Medicare and Medicaid Services (CMS) now moves for summary judgment.  

For the reasons discussed below, I grant CMS’s motion and affirm the contractor’s reconsidered determination denying Petitioner’s Medicare enrollment. 

Background

On January 15, 2025, Petitioner applied to enroll in the Medicare program, submitting three separate applications.  CMS Exs. 1-3.  In a letter dated January 20, 2025, the contractor advised Petitioner that its application was denied because no statute or regulation authorizes a licensed manicurist or nail technician to enroll in or receive

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payment from the Medicare program.  CMS Ex. 5 at 1.  Petitioner timely requested reconsideration.  CMS Exs. 6, 17.1 

In a reconsidered determination, dated May 2, 2025, the contractor affirmed the denial of enrollment, citing 42 C.F.R. § 424.530(a)(1), and concluding that no statutory or regulatory basis allowed the contractor to enroll a licensed manicurist, nail technician, or any other similar specialty in the Medicare program.  “Without being . . . enrolled and appropriately certified as an acceptable non-physician specialty, neither Danny Doan nor Nailivery are eligible for enrollment in the Medicare program.”  CMS Ex. 18 at 4. 

On May 14, 2025, Petitioner filed this appeal.  Request for Hearing (E-file # 1). 

On May 14, 2025, I issued an acknowledgment and pre-hearing order, explaining the procedures to follow and the manner in which the parties’ written arguments and evidence were to be submitted.  I directed CMS to submit its prehearing exchange no later than June 18, 2025.  I directed Petitioner to submit its exchange no later than July 23, 2025, “[a]fter receiving and reviewing the CMS exchange.”  Acknowledgment and Pre-hearing Order at 3 (¶ 4(b)) (E-file # 2). 

Unfortunately, Petitioner disregarded my order and immediately began submitting documents in a manner that did not comply with my order and has created an unwieldy and confusing record.  (E-file # 3 through E-file # 6; E-file # 8 through E-file # 20; E-file # 22 through E-file # 24; E-file # 26 through E-file # 32).  I have tried to eliminate as much confusion as possible by citing to CMS’s properly marked exhibits that Petitioner’s submissions duplicate, and, where necessary, referring to Petitioner’s submissions by their electronic file (E-file) numbers.  

Responding to my order, CMS filed its prehearing exchange on June 18, 2025.  The exchange included a motion for summary judgment and pre-hearing brief (CMS Br.), with 33 exhibits (CMS Exs. 1-33).  Because I resolve this matter on summary judgment, I need not admit the proposed documents.  Rather, I must consider all proffered evidence

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to determine whether it creates a material fact in dispute.  Lilia Gorovits, M.D., P.C., DAB No. 2985 at 3 n.4 (2020), aff’d, Gorovits v. Becerra, No. CV 20-1850, 2021 WL 1962903 (E.D. Pa. May 17, 2021); Ill. Knights Templar Home, DAB No. 2274 at 6-7 (2009).  

Discussion

1. CMS is entitled to summary judgment because the undisputed evidence establishes that Petitioner is not in compliance with Medicare enrollment requirements.  It has not established that it is qualified to enroll in Medicare as any kind of provider or supplier.2 

Summary judgment.  I find that this matter can be resolved on summary judgment because the material facts are settled, and CMS is entitled to judgment as a matter of law.  See Bartley Healthcare Nursing & Rehab., DAB No. 2539 at 3 (2013) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)); Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009), and cases cited therein.  Petitioner has tendered no evidence of specific facts showing that a dispute exists.  See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986); see also Vandalia Park, DAB No. 1939 (2004); Lebanon Nursing & Rehab. Ctr., DAB No. 1918 (2004).  An evidentiary hearing would thus serve no purpose.  See Fal-Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445, 449 (7th Cir. 2010) (“All it means for a decision to be based on a grant of summary judgment is that there are no issues that would benefit from being resolved in an evidentiary hearing.”) (Emphasis added).3 

Program requirements.  To receive Medicare payments for the services furnished to program beneficiaries, a supplier must enroll in the program.  Social Security Act (Act) §§ 1834(j), 1835(a); 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

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owners and practice location; and 4) grant the supplier Medicare billing privileges.  42 C.F.R. § 424.502. 

The requirements for establishing and maintaining Medicare enrollment are found at 42 C.F.R. Part 424, subpart P (§§ 424.500-424.575).  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. 

CMS may deny a prospective supplier’s enrollment for the reasons set forth in 42 C.F.R. § 424.530(a), which include finding that a potential supplier “is determined to not be in compliance with the enrollment requirements in [42 C.F.R. Part 424 subpart P] or in the enrollment application applicable for its . . . supplier type.”  42 C.F.R. § 424.530(a)(1).4 

The Act defines “supplier” as “a physician or other practitioner, a facility, or other entity (other than a provider of services) that furnishes items or services under this title.”  Act § 1861(d); see 42 C.F.R. § 400.202, 42 C.F.R. § 498.2.  Among the long list of “services” that suppliers furnish are:  physician and related services; diagnostic outpatient services; diagnostic laboratory and x-ray services; x-ray and other radiation therapy services; ambulance services; rural health clinic services; outpatient physical therapy and speech pathology services; services of a registered nurse anesthetist or an anesthesiologist’s assistant; clinical psychologist services; clinical social worker services; marriage and family therapy services; and mental health counselor services.  Act § 1861(g), (h), (i), (p), (q), (s), (aa), (bb), (cc), (hh), (ii), (ll); 42 C.F.R. §§ 410.10, 424.502, 498.2. 

To qualify for Medicare enrollment, the prospective supplier must be capable of furnishing a covered service.  As CMS points out, the suppliers who furnish these services – physical therapists, occupational therapists, speech-language pathologists, clinical psychologists, clinical social workers, certified registered nurses, etc. – have specialized training in health care and ancillary services.  CMS Br. at 6; see Act §§ 1842(b)(18)(C), 1848(k)(3)(B).  The undisputed evidence establishes that Petitioner does not. 

Petitioner’s applications.  Here, Petitioner filed three Medicare enrollment applications:  Form CMS-855I, which is an application for physicians and non-physician practitioners

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(CMS Ex. 1); Form CMS-855B, which is an application for clinics/group practices and other suppliers (CMS Ex. 2); and Form CMS-855R, which is an application to reassign Medicare benefits (CMS Ex. 3).5 

In its applications, Petitioner describes itself as “non-physician licensed manicurist” (CMS Ex. 1 at 1, 3), and, indeed, its sole owner is a licensed manicurist/nail technician; no other qualifications or training are suggested.  CMS Ex. 4 at 1; CMS Ex. 21. 

Petitioner has since embellished its characterization and now claims to be “a mobile healthcare provider specializing in podiatric services.”  Petitioner lists the services it offers as:  routine foot care, wound care and diabetic foot assessments, and telemedicine, with referrals to specialists, as needed.  (E-file # 10 at 1).  These assertions do not establish that Petitioner is eligible to enroll in the Medicare program as a supplier of services. 

First, Medicare does not cover routine foot care services.  Act § 1862(a)(13)(C). 

Second, although Petitioner lists services that Medicare might cover (wound care, diabetic foot assessments, some telemedicine services), nothing in this record establishes that Petitioner is qualified to provide them.  Neither its applications nor any actual evidence suggests that Petitioner is affiliated with a qualified podiatrist or any other medical professional.  (E-file # 10 at 1).  At most, it claims to have an (unidentified and previously unmentioned) “pre-med podiatrist on our team.”  CMS Ex. 4 at 1.  In fact, Petitioner’s owner concedes that no physician would agree to collaborate with the nail practice.  (E-file # 32 at 1) (“The response?  Silence, avoidance, or outright dismissal.”). 

Petitioner does not have specialized training or credentials to provide any services except those of a licensed manicurist/nail technician.  CMS Ex. 1 at 1, 3; CMS Ex. 4 at 1; CMS Exs. 32, 33 (state licenses issued by the Florida and Arizona Boards of Cosmetology).  The statute and regulations do not list manicurist/nail technician among the health care practitioners that can furnish Medicare-covered services.  Petitioner thus does not qualify as a “supplier” and may not enroll in the Medicare program.  Angela Johnson, DAB No. 3042 at 6-7 (2021).  

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Conclusion

For the reasons discussed above, I grant CMS’s Motion for Summary Judgment and affirm the contractor’s reconsidered determination denying Petitioner’s Medicare enrollment.